2. It
will be convenient to answer the questions of law that arise in the present
case, before we advert to the factual controversy between the parties. The
questions of law are:

[1]
Has an organiser or producer of any event a right to get the event telecast
through an agency of his choice whether national or foreign?

[2]
Has such organiser a choice of the agency of telecasting, particularly when the
exercise of his right, does not make demand on any of the frequencies owned,
commanded or controlled by the Government or the Government agencies like the
Videsh Sanchar Nigam Limited [VSNL] or Doordarshan [DD]?

[3]
Can such an organiser be prevented from creating the terrestrial signal and
denied the facility of merely uplinking the terrestrial signal to the satellite
owned by another agency whether foreign or national?

[4]
What, if any, are the conditions which can be imposed by the Government
department which in the present case is the Ministry of Information and
Broadcasting [MIB] for [a] creating terrestrial signal of the event and [b]
granting facilities of uplinking to a satellite not owned or con- trolled by
the Government or its agencies?

3. On
answers to these questions depend the answers to the incidental questions such
as [i] whether the Government or the Government agencies like DD in the present
case, have a monopoly of creating terrestrial signals and of telecasting them
or refusing to telecast them, [ii] whether the Government or Government agencies
like DD can claim to be the host broadcaster for all events whether produced or
organised by it or by anybody else in the country and can insist upon the
organiser or the agency for telecasting en- gaged by him, to take the signal
only from the Government or Government agency and telecast it only with its
permission or

4. To
appreciate the thrust of the above questions and the answers to them, it is
necessary first to have a proper understanding of what 'telecasting' means and
what its legal dimensions and consequences are. Telecasting is a system of
communication either audio or visual or both. We are concerned in the present
case with audio-visual telecommunication. The first stage in telecasting is to
generate the audio-visual signals of the events or of the information which is
sought to be communicated. When the event to be telecast takes place on the
earth, necessarily the signal is generated on the earth by the 123 requisite
electronic mechanism such as the audio-visual recorder. This stage may be
described as the recording stage. The events may be spontaneous, accidental,
natural or organised. The spontaneous, accidental and natural events are by
their nature uncontrollable. But the organised events can be controlled by the
law of the land.

In our
country, since the Organisation of an event is an aspect of the fundamental
right to freedom of speech and expression protected by Article 19 [1] (a), the
law can be made to control the Organisation of such events only for the
purposes of imposing reasonable restrictions in the interest of the sovereignty
and integrity of the country, the security of the state, friendly relations
with foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement- to an offence as laid down under
Article 19 [2] of the Constitution. Al- though, therefore, it is not possible
to make law for prohibiting the recording of spontaneous, accidental or natural
events, it is possible for the reasons mentioned in Article 19 [2], to restrict
their telecasting. As regards the organised events, a law can be made for
restricting or prohibiting the Organisation of the event itself, and also for
telecasting it, on the same grounds as are mentioned in Article 19 [2]. There,
cannot, however, be restrictions on producing and recording the event on
grounds not permitted by Article 19 [2]. It, therefore, follows that the
Organisation or production of an event and its recording cannot be prevented
except by law permitted by Article 19 [2]. For the same reasons, the
publication or communication of the recorded event through the mode of
cassettes cannot be restricted or prevented except under such law. All those
who have got the apparatus of video cassette recorder [VCR] and the television
screen can, therefore, view and listen to such recorded event [hereinafter
referred to, for the sake of convenience, as 'viewers']. In this process, there
is no demand on any frequency or channel since there is no live- telecast of
the event. The only additional restriction on telecasting or live-telecasting
of such event will be the lack of availability of the frequency or channel.

5.
Since in the present case, what is involved is the right to live-telecast the
event, viz., the cricket matches organised by the Cricket Association of
Bengal, it is necessary to understand the various issues involved in live
telecasting. It may be made clear at the outset, that there may as well be a
file telecast [i.e., telecasting of the events which are already recorded by
the cassette]. The issues involved in file telecasting will also be more or
less the same and therefore, that subject is not dealt with separately.
Telecasting live or file necessarily involves the use of a frequency or a
channel.

6. The
telecasting is of three types, [a] terrestrial, [b] cable and [c] satellite. In
the first case, the signal is generated by the camera stationed at the spot of
the event,- and the signal is then sent to the earthly telecasting station such
as the T.V. Centre which in turn relays it through its own frequencies to all
the viewers who have T.V.screens/sets. In the second case, viz., cable
telecasting, the cable operator receives the signals from the satellite by
means of the parabolic dish antenna and relays them to all those T.V. screens
which are linked to his cable. He also relays the recorded file programmes or
cassettes through the cable to the cable-linked viewers. In this case, there is
no restriction on 124 his receiving the signals from any satellite to which his
antenna is adjusted. There is no demand made by him on any frequency or channel
owned or controlled by the national government or governmental agencies. The
cable operator can show any event occurring in any part of the country or the
world live through the frequencies if his dish antenna can receive the same.
The only limitation from which the cable T.V. suffers is that the programmes
relayed by it can be received only by those viewers who are linked to the dish
antenna concerned. The last type, viz., satellite T.V. operation involves the
use of a frequency generated, owned or controlled by the national Government or
the Governmental agencies, or those generated, owned and controlled by other
agencies. It is necessary to bear in mind the distinction between the frequencies
generated, owned and controlled by the Government or Governmental agency and
those generated and owned by the other agencies. This is so because generally,
as in the present case, one of the contentions against the right to access to
telecasting is that there are a limited number of frequencies and hence there
is the need to utilise the limited resources for the benefit of all sections of
the society and to promote all social interests by giving them priority as
determined by some central authority. It follows, therefore, that where the
resources are unlimited or the right to telecast need not suffer for want of a
frequency, objection on the said ground would be misplaced. It may be stated
here that in the present case, the contention of the MIB and DD against the
right to telecast claimed by the Cricket Association of Bengal [CAB]/Board of
Control for Cricket in India [BCCI] was raised only on the ground of the
limitation of frequencies, ignoring the fact that the CAB/BCCI had not made
demand on any of the frequencies generated or owned by the MIB/DD. It desired
to telecast the cricket matches organised by it through a frequency not owned
or controlled by the Government but owned by some other agency. The only
permission that the CAB/ BCCI sought was to uplink to the foreign satellite the
signals created by its own cameras and the earth station or the cameras and the
earth station of its agency to a foreign satellite. This permission was sought
by the CAB/BCCI from VSNL which is the Government agency controlling the
frequencies. The permission again cannot be refused except under law made in
pursuance of the provisions of Article 19 [2] of the Constitution. Hence, as
stated above, one of the important questions to be answered in the present case
is whether the permission to uplink to the foreign satellite, the signal
created by the CAB/BCCI either by itself or through its agency can be refused
except on the ground stated in the law made under Article 19 [2].

7.
This takes us to the content of the fundamental right to the freedom of speech
and expression guaranteed by Article 19 [1] (a) and the implications of the
restrictions permitted to be imposed on the said right, by Article 19 [2]. We
will first deal with the decisions of this Court where the dimensions of the
right are delineated.

8. In
Romesh Thappar v. The State of Madras [1950 SCR 594] the facts were that the
Provincial Government in exercise of its powers under Section 9 [1-A] of Madras
Maintenance of Public Order Act, 1949, by an order imposed a ban upon the entry
and circulation of the petitioner's journal 'Cross Roads'. The said order
stated that it was being passed for the pur- 125 pose of securing the public
safety and the maintenance of public order. The petitioner approached this
Court under Article 32 of the Constitution claiming that the order contravened
the petitioner's fundamental right to freedom of speech and expression. He also
challenged the validity of Section 9 [1-A] of the impugned Act. The majority of
the Court held that the freedom of speech and expression includes freedom of
propagation of ideas and that freedom is ensured by the freedom of circulation.
In support of this view, the Court referred to two decisions of the U.S. Su-
preme Court viz., [1] Exparte Jackson [96 US
727] and [ii] Lovell v. City of Griffin [303 US 444] and quoted with approval the
following passage therefrom: "Liberty of circulation is as essential to that freedom as the liberty of
publication. Indeed, without circulation the publication would be of little
value". Section 9 [1-A] of the impugned Act authorised the Provincial
Government, "for the purpose of securing the public safety or the
maintenance of public order, to prohibit or regulate the entry into or the
circulation, sale or distribution in the Province of Madras or any part thereof
or any document or class of documents".

The
question that the Court had to answer was whether the impugned Act insofar as
it contained the aforesaid provision was a law relating to a matter which
undermined the security of, or tended to overthrow the State. The Court held
that "public order" is an expression of wide connotation and
signifies that state of tranquility which prevails among the members of a
political society as a result of the internal regulations enforced by the
Government which they have established. The Act was passed by the Provincial
Leg- islature under Section 100 of the Government of India Act, 1935, read with
Entry I of List II of the Seventh Scheduled to that Act. That Entry, among
others, comprised "public order" which was different from
"public safety" on which subject the Provincial Legislature was not
competent to make a law. The Court distinguished between "public
order" and "public safety" and held that public safety was a
part of the wider concept of public order and if it was intended to signify any
matter distinguished from and outside the content of the expression
"public order", it would not have been competent for the Madras
Legislature to enact the provision so far as it related to public safety.
"Public safety" ordinarily means security of the public or their
freedom from danger. In that sense, anything which tends to prevent danger to
public health may also be regarded as se- curing public safety. The meaning of
the expression must, however, vary according to the context. The Court then
rejected the argument that the securing of the public safety or maintenance of
public order would include the security of the State which was covered by
Article 19 [2] and held that where a law purports to authorise the imposition
of restrictions on a fundamental right in language wide enough to cover
restrictions both within and without the limits of constitutionally permissible
legislative actions affecting such right, it is not possible to uphold it even
insofar as it may be applied within the constitutional limits as it is not
severable. So long as the possibility of its being applied for purposes not
sanctioned by the Constitution cannot be ruled out, it may be held to be wholly
unconstitutional and void. In other words, clause [2] of Article 19 having
allowed the imposition of restrictions on the freedom of speech and expression
only in cases where danger to the State is involved, an enactment which is
capable of being 126 applied to cases where no such danger could arise, cannot
be held to be constitutional and valid to any extent.

9. The
above view taken by this Court was reiterated in Brij Bhushan & Anr. v. The
State of Delhi [1950 SCR 6051 where Section 7 [1] (c) of the East Punjab Public
Safety Act, 1949 as extended to the Province of Delhi, providing that the
Provincial Government or any authority authorised by it in this behalf, if
satisfied that such action was necessary for preventing or combating any
activity prejudicial to the public safety or the maintenance of public order,
may pass an order that any matter relating to a particular subject -or class of
subjects shall before publication be submitted for scrutiny, was held as un-
constitutional and void. The majority held that the said provision was
violative of Article 19 [1] [a] since it was not a law relating to a matter
which undermined the security of, or tended to overthrow the State within the
meaning of the then saving provision contained in Article 19 [2]. The Court
further unanimously held that the imposition of pre- censorship of a journal
was a restriction on the liberty of the press which was an essential part of
the right to freedom of speech and expression declared by article 19 [1](a).

10. In
Hamdard Dawakhana [Wakf] Lal Kuan, Delhi & Anr. v. Union of India & Ors. [(1960) 2 SCR
671], the Court held that the object of the Drugs and Magic Remedies
[Objectionable Advertisements] Act, 1954 was the prevention of self-medication
and self-treatment by prohibiting in- struments which may be used to advocate
the same or which tended to spread the evil. Its object was not merely the
stopping of advertisements offending against morality and decency. The Court
further held that advertisement is no doubt a form of speech but its true
character is reflected by the object for the promotion of which it is employed.
It is only when an advertisement is concerned with the expression or
propagation of ideas that it can be said to relate to freedom of speech but it
cannot be said that the right to publish and distribute commercial
advertisements advertising an individual's personal business is a part of the
freedom of speech guaranteed by the Constitution. The provisions of the Act
which prohibited advertisements commending the efficacy, value and importance in
the treatment of particular diseases of certain drugs and medicines did not
fall under Article 19 [1] (a) of the Con- stitution. The scope and object of
the Act, its true nature and character was not interference with the right of
freedom of speech but it dealt with trade and business. The provisions of the
Act were in the interest of the general public and placed reasonable
restrictions on the trade and business of the petitioner and were saved by
Article 19 [6].

The
Court further held that the first part of Section 8 of the impugned Act which
empowered any person authorised by the State Government to seize and detain any
document article or thing which such person had reason to believe, contained
any advertisement contravening the provisions of the Act imposed an
unreasonable restriction on the fundamental rights of the petitioner and was
unconsti- tutional. According to the Court, the said operation of Section 8
went far beyond the purposes for which the Act was enacted and failed to
provide proper safeguards in regard to the exercise of the powers of seizure
and detention as had been provided by the legislature in other statutes.

However,
if this operation was ex- 127 cised from the section the remaining portion
would be unintelligible and could not be upheld.

11. In
Sakal Papers [P] Ltd. & Ors.. v. The Union of India [(1962)] 3 SCR 842]
what fell for consideration was the Newspaper [Price and age] Act, 1956 which
empowered the Central Government to regulate the prices of newspapers in
relation to their pages and size and also to regulate the allocation of space
for advertising matters and the Central Government order made under the said
Act, viz., the Daily Newspaper [Price and Page] Order, 1960 which fixed the
maximum number of pages that might be published by the newspaper according to
the price charged and prescribing the nature of supplements that could be
issued. The Court held that the Act and the Order were void being violative of
Article 19 [1] (a) of the Constitution. They were also not saved by Article 19
[2]. The Court asserted that the free- dom of speech and expression guaranteed
by Article 19 [1] (a) included the freedom of the press. For propagating his
ideas a citizen had the right to publish them, to disseminate them and to
circulate them, either by word or mouth or by writing. The right extended not
merely to the matter which he was entitled to circulate but also to the volume
of circulation. Although the impugned Act and the Order placed restraints on
the volume of circulation, their very object was directed against circulation.
Thus both interfered with the freedom of speech and expression. The Court held
that Article 19 [2] did not permit the State to abridge the said right in the
interest of general public.

The
Court also held that the State could not make a law which directly restricted
one guaranteed freedom for securing the better enjoyment of another freedom.
Freedom of speech could not be restricted for the purpose of regu- lating the
commercial aspect of the activities of newspapers. In this connection, the
following observations of the Court are relevant:

"Its
object thus is to regulate something which, as already stated, is directly
related to the circulation of a newspaper. Since circulation of a newspaper is
a part of the right of freedom of speech the Act must be regarded as one
directed against the freedom of speech. It has selected the fact or thing which
is an essential and basic attribute of the conception of the freedom of speech,
viz., the right to circulate one's views to all whom one can reach or care to
reach for the imposition of a restriction. It seeks to achieve its object of
enabling what are termed the smaller newspapers to secure larger cir- culation
by provisions which without disguise are aimed at restricting the circulation
of what are termed the larger papers with better financial strength. The
impugned law far from being one, which merely interferes with the right of
freedom of speech incidentally, does so directly though it seeks to achieve the
end by purporting to regulate the business aspect of a newspaper. Such a course
is not permissible and the courts must be ever vigilant in guarding perhaps the
most precious of all the freedoms guaranteed by our Constitution. The reason
for this is obvious.

The
freedom of speech and expression of opinion is of paramount importance under a
democratic Constitution which envisages changes in the composition of
legislatures and governments and must be preserved. No doubt, the law in
question was made upon the rec- ommendation of the Press Commission but since
its object is to affect directly the right of circulation of newspapers which
would necessarily undermine their power to influence public opinion it cannot
but 128 be regarded as a dangerous weapon which is capable of being used
against democracy itself.

x x x
x x x The legitimacy of the result intended to be achieved does not necessarily
imply that every means to achieve it is permissible; for even if the end is
desirable and permissible, the means employed must not transgress the limits
laid down by the Constitution, if they directly impinge on any of the
fundamental rights guaranteed by the Constitution it is no answer when the
constitutionality of the measure is challenged that apart from the fundamental
right infringed the provision is otherwise legal.

Finally
it was said that one of its objects is to give some kind of protection to small
or newly started newspapers and, therefore, the Act is good. Such an object may
be desirable but for attaining it the State cannot make inroads on the right of
other newspapers which Art. 19 [1] (a) guarantees to them. There may be other
ways of helping them and it is for the State to search for them but the one
they have chosen falls foul of the Constitution.

To
repeat, the only restrictions which may be imposed on the rights of an
individual under Art. 19 [1] (a) are those which cl. [2] of Art 19 permits and
no other".

12. In
Bennett Coleman & Co. & Ors. v. Union of India & Ors. [(1972) 2 SCC
788], the majority of the Constitution Bench held that newspapers should be
left free to determine their pages, their circulation and their new edition
within their quota which has been fixed fairly. It is an abridgment of freedom
of expression to prevent a common ownership unit from starting a new edition or
a new newspa- per. A common ownership unit should be free to start a new
edition out of their allotted quota and it would be logical to say that such a
unit can use its allotted quota for changing its page structure and circulation
of different editions of same paper. The compulsory reduction to ten pages
offends Article 19 [1] (a) and infringes the freedom of speech and expression.
Fixation of page limit will not only deprive the petitioners of their economic
viability, but will also restrict the freedom of expression by reason of the
compulsive reduction of page level entailing reduction of circulation and
including the area of coverage for news and views. Loss of advertisements may
not only entail the closing down, but will also affect the circulation and
thereby impinge on freedom of speech and expression. The freedom of press
entitles newspapers to achieve any volume of circulation. It was further held
that the machinery of import control cannot be utilised to curb or control circulation
or growth or freedom of newspapers.The news print control policy was in effect
a newspaper control policy and a newspaper control policy is ultra vires the
Import Control Act and the Import Control Order. The majority further held that
by the freedom of press is meant the right of citizens to speak and publish and
express their views. The freedom of the press embodies the right of the people
to read and it is not ante-thetical to the right of the people to speak and
express. The freedom of speech and expression is not only in the volume of
circulation but also in the volume of news and views.

The
press has the right of free publication and their circulation without any
obvious restraint on publication.

If the
law were to single out press 129 for laying down prohibitive burdens on it that
would restrict circulation, penalise freedom of choice as to personnel, prevent
newspapers from being started and compel the press to Government aid. This
would violate Article 19 [1] (a) and would fall outside the protection afforded
by Article 19 [2]. The First Amendment to the American Constitution contains no
exception like our Article 19 [2].

Therefore,
American decisions have evolved their own exceptions. The American decisions
establish that a Government regulation is justified in America as an important
essential Government interest which is unrelated to the suppression of free
expression. The true test is whether the effect of the impugned action is to
take away or abridge fundamental rights. The object of the law or executive
action is irrelevant when it is established that the petitioner's fundamental
right is infringed.

13. In
Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. [(1985) 1 SCC 641 ], the Court
held that the expression "freedom of the press" has not been used in
Article 19, but it is comprehended within Article 19 [1] (a). This expression
means a freedom from interference from authority which would have the effect of
interference with the content and circulation of newspapers. There cannot be
any interference with that freedom in the name of public interest. The purpose
of the press is to advance the public interest by publishing facts and opinions
without which democratic electorate cannot make responsible judgments.

Freedom
of the press is the heart of social and political intercourse. It is the
primary duty of the Courts to up- ,,hold the freedom of the press and
invalidate all laws or administrative actions which interfere with it contrary
to the constitutional mandate. The freedom of expression has four broad social
purposes to serve:

[i] it
helps an individual to attain self fulfilment,

[ii] it
assists in the discovery of truth,

[iii] it
strengthens the capacity of an individual in participating in decision-making
and

[iv] it
provides a mechanism by which it would be possible to establish a reasonable
balance between stability and social change.

All
members of the society should be able to form their own beliefs and communicate
them freely to others. In sum, the fundamental principle involved here is the
people's right to know. Freedom of speech and expression should, therefore,
receive a generous support from all those who believe in the participation of
people in the administration. It is on account of this special interest which
society has in the freedom of speech and expression that the approach of the
Government should be more cautious while levying taxes on matters concerning
newspaper industry than while levying taxes on other matters.The Courts are
there always to strike down curtailment of freedom of press by unconstitutional
means. The delicate task of determining when it crosses from the area of
profession, occupation, trade, business or industry into the area of freedom of
expression and interferes with that freedom is entrusted to the Courts. In
deciding the reasonableness of restrictions imposed on any fundamental right
the Court should take into consideration the nature of the right alleged to
have been infringed, the underlying purpose of the restrictions imposed, the
disproportion of the imposition and the prevailing conditions including the
social values whose needs are sought to be satisfied by means of the
restrictions. The imposition of a tax like the custom duty on 130 news print is
an imposition of tax on knowledge and would virtually amount to a burden
imposed on a man for being literate and for being conscious of his duty as a
citizen to inform himself of the world around him. The pattern of the law
imposing custom duty and the manner in which it is operated, to a certain
extent, exposes the citizens who are liable to pay the custom duties to the
vagaries of executive discretion.

14. In
Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana and others [(1988) 3
SCC 410 ], it was held that the right of citizens to exhibit films on
Doordarshan subject to the terms and conditions to be imposed by the
Doordarshan is a part of the fundamental right of freedom of expression
guaranteed under Article 19 [1] (a) which can be curtailed only under circumstances
set out under Article 19 [2]. The right is similar to the right of citizen to
public his views through any other media such as newspapers, maga- zines,
advertisement hoarding etc. subject to the terms and conditions of the owners
of the media. The freedom of expression is a preferred right which is always
very zealously guarded by the Supreme Court. However, on the question whether a
citizen has a fundamental right to estab- lish a private broadcasting station
or T.V. centre, the Court reserved its opinion for decision in an appropriate
case. The matter had come up before this Court against an interim injunction
order issued by the High Court as a result of which 12th and 13th episodes of
the film "Honi- Anhoni" could not be telecast on the scheduled dates.
The Court held that it was not the case of the writ petitioners before the High
Court that the exhibition of the said serial was in contravention of any
specific law or direction issued by the Government. They had also not alleged
that the Doordarshan had shown any undue favour to the appellant and the
sponsoring institutions resulting in any financial loss to the public
exchequer. The objection to the exhibition of the film had been raised by them
on the basis that it was likely to spread false or blind beliefs among the
members of the public. They had not asserted any right conferred on them by any
statute or acquired by them under a contract which entitled them to secure an
order of temporary injunction. The appellant before this court had denied that
the exhibition of the serial was likely to affect prejudicially the wellbeing
of the people. The Union of India and Doordarshan had pleaded that the serial
was being telecast after following the prescribed procedure and taking
necessary precautions. The writ petitioners had not produced any material. apart
from their own statements to show" that the exhibition of the serial was
prima facie prejudicial to the community. This Court held that the High Court
had overlooked that the issue of an order of interim injunction would infringe
the fundamental right of the producer of a serial. In the absence of any prima
facie evidence of gross prejudice that was likely to be caused to the public
generally by the exhibition of the serial, it was not just and proper to issue
an order of temporary in- junction.

15. In
S. Rangarajan v. P. Jagjivan Ram & Ors. [(1989) 2 SCC 574], it was held
that the-freedom of speech under Ar- ticle 19 [1] (a) means the right to
express one's opinion by words of mouth, writing, printing, picture or in any
other manner. It would thus include the freedom of communication and,their
right to propagate or 131 publish opinion. The communication of ideas could be
made, through any medium, newspaper, magazine or movie. But this right is subject
to reasonable restriction in the larger interests of the community and the
country set out in Article 19 [2]. These restrictions are intended to strike a
proper balance between the liberty guaranteed and the social interests
specified in Article 19 [2]. This is the difference between the First Amendment
to the U.S. Constitution and Article 19 of our Constitution. The decisions
bearing on the First Amendment are, therefore, not useful to us except the
broad principle and purpose of the guarantee. The Court, in this connection,
referred to the U.S. decisions in Mutual Film
Corporation v. Industrial Commission [236 US
230 (1915)], Burslyn v. Wilson [343 US 495] and Schenck v. United States
[249 US 47]. The Court further held that
there should be a compromise between the interest of freedom of expression and
social interests. The Court cannot simply balance the two interests as if they
are of equal weight. The Court's commitment to freedom of expression demands
that it cannot be suppressed unless the situations created by allowing the
freedom are pressing and the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It should have
proximate and direct nexus with the expression.

The
expression of thought should be intrinsically dangerous to the public
interests. It should be inseparably locked up with the action contemplated like
the equivalent of a "spark in a powder keg". Though movie enjoys the
guarantee under Article 19 [1] (a), there is one significant difference between
the movie and other modes of communication. Movie motivates thought and action
and assures a high degree of attention and retention. In view of the scientific
improve- ments in photography and production, the present movie is a powerful means
of communication. It has a unique capacity to disturb and arouse feelings. It
has much potential for evil as it has for good. With these qualities and since
it caters for mass audience who are generally not selective about what they
watch, the movie cannot be equated with other modes of communication. It cannot
be allowed to function in a free marketplace just as does the newspaper or
magazines. Censorship by prior restraint is, therefore, not only desirable but
also necessary. But the First Amendment to the U.S. Constitution does not
permit any prior restraint, since the guarantee of free speech is in
unqualified terms. Censorship is permitted mainly on the ground of social
interests specified under Article 19 [2] with emphasis on maintenance of values
and standards of society. Therefore, censorship with prior restraint must
necessarily be reasonable that could be saved by the well accepted principles
of judicial review. The standard to be applied by the board or courts for
judging the film should be that of an ordinary man of common sense and prudence
and not that of an out of the ordinary or hypersensitive man.

The
board should exercise considerable circumspection on movies affecting the
morality or decency of our people and cultural heritage of the country. The
moral values in particular, should not be allowed to be sacrificed in the guise
of social change or cultural assimilation. The path of right conduct shown by
the great sages and thinkers of India and the concept of 'Dharam'
[righteousness in every respect], which are the bedrock of our civilisation,
should not be allowed to be shaken by unethical standards. But this does not
mean that the censors should have an orthodox 132 or conservative outlook. Far
from it, they must be responsive to social change and they must go with the
current climate. However, the censors may display more sensitivity to movies
which will have a markedly deleterious effect to lower the moral standards of
those who see it.

16.
However, the producer may project his own message which the others may not
approve of it. But he has a right to 'think out' and put the counter-appeals to
reason. It is a part of a democratic give and take to which one could complain.
The State cannot prevent open discussion and open expression, however hateful
to its policies. Everyone has a fundamental right to form his own opinion on
any issue of general concern. He can form and inform by any legitimate means.
The democracy is a government by the people via open discussion. The democratic
form of government itself demands its citizens an active and intelligent
participation in the affairs of the community. The public discussion with
people's participation is a basic feature and a rational process of democracy
which distinguishes it from all other forms of government.

17.
Dealing with the film in question, the Court further observed that the film in
the present case suggests that the existing method of reservation on the basis
of caste is bad and reservation on the basis of economic backwardness is better.
The film also deprecates exploitation of people on caste consideration. This is
the range and rigours of the film. There is no warrant for the view that the
expression in the film by criticism of reservation policy or praising the
colonial rule will affect the security of the State or sovereignty and
integrity of India. There is no utterrance in the film threatening to overthrow
the government by unlawful or unconstitutional means or for secession; nor is
there any suggestion for impairing the integration of the country. Two Revising
Committees have approved the film.

The
members thereof come from different walks of life with variegated experiences.
They represent the cross-section of the community. They have judged the film in
the light of the objectives of the Act and the guidelines provided for the
purpose. There is nothing wrong or contrary to Constitution in approving the
film for public exhibition.

The
producer or as a matter of fact, any other person has a right to draw the
attention of the government and people that the existing method of reservation
in educational institutions overlooks merits. Whether this view is right or
wrong is another matter altogether and at any rate, the Court is not concerned
with its correctness or usefulness to the people. The Court is only concerned
whether such a view could be advocated in a film. To say that one should not be
permitted to advocate that view goes against the first principle of our
democracy. If the film is unobjectionable and cannot constitutionally be
restricted under Article 19 [2], freedom of expression cannot be suppressed on
account of threat of demonstration and processions or threats of violence. That
would tantamount to negation of the rule of law and a surrender to blackmail
and intimidation. It is the duty of the State to protect the freedom of
expression since it is a liberty guaranteed against the State. The State cannot
plead its inability to handle the hostile audience problem. Freedom of
expression which is legitimate and constitutionally protected cannot be held to
ransom by an intolerant group of people. The fundamental freedom under Article
19 133 [1] (a) can be reasonably restricted only for the purposes mentioned in
Article 19 [2] and the restriction must be justified on the anvil of necessity
and not the quicksand of convenience or expediency. Open criticism of
government policies and operations is not a ground for restricting ex-
pression.

18.
The views taken by this Court in the aforesaid decisions have thereafter been
repeated and reproduced in the subsequent decisions.

19. In
Printers (Mysore) Ltd. & Anr v. Asst. Commercial Tax Officer & Ors.
[(1994) 2 SCC 434], it is reiterated that the special treatment given to the
newspapers has a philosophy and historical background. Freedom of press has
been placed on a higher footing than other enterprises.

Though
freedom of press is not expressly guaranteed as a fundamental right, it is
implicit in the freedom of speech and expression. Freedom of press has always
been a cherished right in all democratic countries. Therefore, it has rightly
been described as the Fourth Estate. The demo- cratic crede is of a State are
judged today by the extent of freedom the press enjoyed in that State. This
decision quotes from the. opinion of Douglas, J. in Terminiello v. Chicago [93 L.ed 1131: 337 US 1 (1949)] that "acceptance by Government of a
dissident press is a measure of the maturity of the nation".

20. In
Life Insurance Corporation of India v. Professor Manubhai D. Shah [(1992) 3 SCC
6371, the respondent-Ex- ecutive Trustee of the Consumer Education and Research
Centre [CERC], Ahmedabad, after making research into the working of the Life
Insurance Corporation [LIC], published a study paper portraying the
discriminatory practice adopted by the LIC by charging unduly high premia from
those taking out life insurance policies and thus denies access to insurance
coverage to a vast majority of people who cannot afford to pay the high
premium. A member of the LIC wrote a counter article and published it in the
daily newspaper "Hindu". The respondent replied to the same in the
said newspaper. The member of LIC then published his counter- reply in LIC's
house magazine. The respondent requested the LIC to publish his rejoinder also
in the said magazine.

That
request was turned down. On these facts, the re- spondent filed a writ petition
before the High Court challenging the action of the LIC, among other things, on
the ground that his fundamental right under Article 19 [1] (a) of the
Constitution was violate by LIC by refusing to publish his reply. The High
Court held that under the pre- text and guise of publishing a house magazine,
the LIC cannot violate the fundamental rights of the petitioner.

This
Court endorsing the view taken by the High Court held that the LIC is 'State'
within the meaning of Article 12.

The
LIC Act requires it to function in the best interest of the community. The
community is, therefore, entitled to know whether or not this requirement of
the statute is being satisfied in the functioning of the LIC. The respondent's
efforts in preparing the study paper was to bring to the notice of the
community that the LIC had strayed from its path by pointing out that its
premium rates were unduly high when they could be low if the LIC avoided the
wasteful indulgences. The endeavour was to enlighten the community of the
drawbacks and shortcomings of the LIC and to pinpoint the area where
improvement was 134 needed and was possible. By denying to the policy-holders,
the information contained in the rejoinder prepared by the respondent, the LIC
cannot be said to be acting in the best interest of the community. There was
nothing offensive in the rejoinder which fell within the restriction clauses of
Article 19 [2]. Nor was it prejudicial to the members of the community or based
on imaginary or concocted material.

On the
basis of the fairness doctrine the LIC was under an obligation to publish the
rejoinder. The respondent's fun- damental right to speech and expression
clearly entitled him to insist that his views on the subject should reach those
who read the magazine so that they have complete picture before them instead of
a one-side or distorted picture The Court also pointed out that the attitude of
the LIC in refusing to publish the rejoinder in their magazine financed from
public funds, can be described as both unfair and unreasonable unfair because
fairness demanded that both view-points were placed before the readers and
unreasonable because there was no justification for refusing publication.

The
monopolistic State instrumentality which survives on public funds cannot act in
an arbitrary manner on the specious plea that the magazine is an in-house one
and it is a matter of its exclusive privilege to print or refuse to print the
rejoinder. By refusing to print and publish the rejoinder', the LIC had
violated respondent's fundamental right. The Court must be careful to see that
it does not even unwittingly' aid the effort to defeat the parties' right.
Every free citizen has an undoubted right to lay what sentiments he pleases
before the public. Freedom to air one's views is the lifeline of any democratic
institution and any attempt to stifle, suffocate or gag this right would sound
a death-knell to democracy and would help usher in autocracy or dictatorship.
This Court has always placed a broad interpretation on the value and content of
Article 19 [1] (a), making it subject only to the restrictions permissible
under Article 19 [2]. Efforts by intolerant authorities to curb or suffocate
this freedom have always been firmly repelled, more so when public authorities
have betrayed autocratic tendencies. The Court then went on to observe:

broadly
construed to include the freedom to circulate one's views by words of mouth or
in writing or through audio-visual instrumentalities. It, therefore, includes
the right to propagate one's views through the print media i.e., periodicals,
magazines or journals or through any other communication channel e.g. the radio
and the television.

The
right extends to the citizen being permit- ted to use the media to answer the
criticism levelled against the view propagated by him.

The
print media, the radio and the tiny screen play the role of public educators,
so vital to growth of a healthy democracy. These communication channels are
great purveyors of news and views and make considerable impact on the minds of
the readers and viewers and are known to mould public opinion on vital issues
of national importance. Modem communication mediums advance public interest by
informing the public of the events and developments that have taken place and
thereby educating the voters, a role considered significant for the vibrant
functioning of a democracy.

Therefore,
in any set-up, more so in a democratic set-up like ours, dissemination of news
and views for popular consumption is a must and any attempt to deny the same
must be frowned upon unless it falls within the mischief of Article 19 [2].This
freedom must, however,be exercised with 135 circumspection and care must be
taken not to trench on the rights of other citizens or to jeopardise public
interest.

A
constitutional provision is never static, it is ever-evolving and ever-changing
and, therefore, does not admit of a narrow, pedantic or syllogistic approach.
The Con- stitution-makers employed broad phraseology while the fundamental
tights so that they may be able to cater to the needs of a changing society.
Therefore, constitutional provisions must receive a broad interpretation and
the scope and ambit of such provisions, in particular the fundamental rights,
should not be cut down by too astute or too restricted an approach, unless the
context otherwise re- quires.

21.The
facts in the other case which was disposed of simultaneously by the same
judgment were that the Doordarshan refused to telecast a documentary film on
the Bhopal Gas Disaster titled 'Beyond Genocide' produced by the respondent
Ciment Foundation on the grounds that

[i] the
film was outdated,

[ii] it
had lost its relevance,

[iii] it
lacked moderation and restraint, [iv] it was not fair and balanced,

[v] political
parties were raising various issues concerning the tragedy,

[vi] claims
for compensation by the victims were sub judice,

[vii] the
film was.likely to create commotion in the already charged atmosphere and

[viii]
the film criticised the action of the State Government and it was not
permissible under the guidelines.

The
respondent filed a writ petition in the High Court on the ground of violation
of his fundamental right under Article 19 [1] (a) and for a mandamus to the
Doordarshan to telecast the film.

The
High Court held that the respondent's right under Article 19 [1] (a) obliged
the Doordarshan to telecast the film and directed the Doordarshan to telecast
the film at a time and date, convenient to it keeping in view the public
interest, and on such terms and conditions as it would like to impose in
accordance with the law. In the appeal against the said decision filed in this
Court, the Court held that once it has recognised that the film maker has the
fundamental right under Article 19 [1] (a) to exhibit the film, the onus lies
on the party which claims that it was entitled to refuse enforcement of this
right by virtue of law made under Article 19 [2] to show that the film did not
conform to requirements of that law. Doordarshan being a State-controlled
agency funded by public funds could not have denied access to screen except on
valid grounds. The freedom conferred on a citizen by Article 19 [1] (a)
includes the freedom to communicate one's ideas or thoughts through a
newspaper, a magazine or a movie. Traditionally, prior restraints, regardless
of their form, are frowned upon as threats to freedom of expression since they
contain within themselves forces which if released have the potential of imposing
arbitrary- and at times direct conflict with the right of another citizen.
Censorship by prior restraint, therefore, seems justified for the protec- tion
of the society from the ill-effects that a motion picture may produce if
unrestricted exhibition is allowed.

Censorship
is thus permitted to protect social interests enumerated in Article 19 [2] and
Section 5-B of the Cinema to graph Act. For this reason, need for prior
restraint has been recognised and our laws have assigned a specific role to the
censors, as such is the need in a rapidly changing societal structure. But
since permissible restrictions, albeit reasonable, are all the same
restrictions, they are bound to be viewed as anathema, in that, they are in the
nature of 136 curbs or limitations on the exercise of the right and are,
therefore, bound to be viewed with suspicion, thereby throwing a heavy burden
on the authorities that seek to impose them to show that the restrictions are
reasonable and permissible in law. Such censorship must be reasonable and must
answer the test of Article 14.

22. In
this connection, it will be interesting also to know the content of the right
to freedom of speech and expression under the First Amendment to the American
Constitution where the freedom of press is exclusively mentioned as a part of
the said right unlike in Article 19 [1] (a) of our Constitution. Further, the
restrictions on the right are not spelt out as in our Constitution under
Article 19 [2].

But
the U.S. Supreme court has been reading some of them as implicit in the right.
In principle, they make no difference to the content of the right to the
freedom of speech and expression under our Constitution.

23. In
National Broadcasting Company v. United States of America [319 US 190238 : 87 L
ed 1344], it was held, inter alia, that the wisdom of regulations adopted by
the Federal Communications Commission is not a matter for the courts, whose
duty is at an end when they find that the action of the Commission was based
upon findings supported by evidence, and was made pursuant to authority granted
by Congress.

24. In
Joseph Burstyn v Lewis A. Wilson [343 US 495: 96 L ed 1098] a licence granted
for the exhibition of a motion picture was rescinded by the appropriate New
York authorities -on the ground that the picture was "sacrilegious"
within the meaning of a statute requiring the denial of a licence if a film was
"sacrilegious". The statute was upheld by the State courts. The
Supreme Court unanimously reversed the decision of the State courts.

Disapproving
a contrary theory expressed in Mutual Film Corp. v. Industrial Com. of Ohio
[236 US 230: 59 L ed 442], six members of the Supreme Court in an opinion of
Clerk, J. held that the basic principles of freedom of speech and press applied
to motion pictures, even though their production, distribution, and exhibition
is a large-scale business conducted for profit. The court recognised that
motion pictures are not necessarily subject to the precise rules governing any
other particular method of expression, but found it not necessary to decide
whether a State may censor motion pictures under a clearly drawn statute, and
limited its decision to the holding that the constitutional guarantee of free
speech and press prevents a state from banning a film on the basis of a
censor's conclusion that it is " sacrilegious". Reed, J. in a
concurrent opinion emphasised that the question as to whether a state may
establish a system for the licensing of motion pictures was not foreclosed by
the court's opinion. Frankfurter, J. with Jackson and Burton, JJ. held that the
term "sacrilegious" as used in the statute was unconstitutionally
vague.

25.In
Red Lion Broadcasting Co. etc. el. al. v. Federal Communications Commission et.
al. and United Slates et. al. v. Radio Television News Directors Association et
al. [395 US 367: 23 L Ed 2d 3711 which two cases were disposed of by common
judgment, the facts were that in the first case, the Broadcasting Company
carried as a part of "Christian Crusade" series, a 15-minute broadcast
in which a third person's honesty and character were at- 137 tacked. His demand
for free reply time was refused by the broadcasting station. Federal
Communications Commission [FCC] issued a declaratory order to the effect that
the broadcasting station had failed to meet its obligation under the FCC's
fairness doctrine. The Court upheld the FCC's directions.

26.In
the second case, the FCC after the commencement of the litigation in the same
case made the personal attack aspect of the fairness doctrine more precise and
more readily enforceable. The Court upheld the FCC's rules overruling the view
taken by the Court of Appeals that the rules were unconstitutional as abridging
the freedom of speech and press.

27.The
Court dealing with the two cases held:

"Just
as the Government may limit the use of sound-amplifying equipment potentially
so noisy that it drowns out civilized private speech, so may the Govenrnment
limit the use of broadcast equipment. The right of free speech of a
broadcaster, the user of a sound track, or any other individual does not
embrace a right to snuff out the free speech of others.

x x x
x x x x for public broadcasting were limited in number, it was essential for
the Government to tell some applicants that they could not broadcast at all
because there was room for only a few.

x x x
x x x x Where there are substantially more individuals who want to broadcast
than there are frequencies to allocate, it is idle to posit an unabridgeable
First Amendment right to broadcast comparable to the right of every individual
to speak, write, or publish. If 100 persons want broadcast licences but there
are only 10 frequencies to allocate, all of them may have the same
"right" to a license;

but if
there is to be any effective communication by radio, only a few can be licensed
and the rest must be barred from the airwaves. It would be strange if the First
Amendment, aimed at protecting and furthering communications, prevented the
government from making radio communication possible by requiring licenses to
broadcast and by limiting the number of licenses so as not to overcrowd the
spectrum.

This
has been the consistent view of the Court. Congress unquestionably has the
power to grant and deny licenses and to eliminate existing stations... No one
has a First Amendment right to a license or to monopolize a radio frequency; to
deny a station license because "the public interest" requires it
"is not a denial of free speech.

By the
same token, as far as the First Amendment is concerned those who are licensed
stand no better than those to whom licenses are refused. A license permits
broadcasting, but the licensee has no constitutional right to be the one who
holds the license or to monopolize a radio frequency to the exclusion of his
fellow citizenis. There is nothing in the First Amendment which prevents the
Govenunent from requiring a licensee to share his frequency with others and to
conduct himself as a proxy or fiduciary with obligations to present those views
and voices which are representative of his community and which would otherwise,
by necessity, be barred from the airwaves.

This
is not to say that the First Amendment is irrelevant to public broad- 138
casting. On the contrary, it has a major role to play as the Congress itself
recognized, which forbids FCC interference with "the right of free speech
by means of radio communication.

Because
of the scarcity of radio frequencies, the Government is permitted to put
restraints on licensees in favour of others whose views should be expressed on
this unique medium.

But
the people as a whole retain their interest in free speech by radio and their
collective right to have the medium function consistently with the ends and
purposes of the First Amenchnent. It is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount...

It is
the purpose of the First Amendment to preserve an uninhibited marketplace of
ideas in which truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by the Government itself or a
private licensee... It is the right of the public to receive suitable access to
social, political, esthetic, moral, and other ideas and experiences which is
crucial here.

That
right may not constitutionally be abridged either by Congress or by the FCC...
right on licensees to prevent others from broadcasting on t 'their"
frequencies and no right to an unconditional monopoly of a scarce resource
which the Government has denied others the right to use.

x x x
x x x x Nor can we say that it is inconsistent with the First Amendment goal of
producing an informed public capable of conducting its own affairs to require a
broadcaster to permit answers to personal attacks occurring in the course of
discussing controversial issues, or to require that the political opponents of
those endorsed by the station be given a chance to communicate with the public.

Otherwise,
station owners and a few networks would have unfettered power to make time
available only to the highest bidders, to com- municate only their own views on
public issues, people and candidates, and to permit on the air only those with
whom they agreed.

There
is no sanctuary in the First Amendment for unlimited private censorship
operating in a medium not open to all. "Freedom of the press from
governmental interference under the First Amendment does not sanction
repression of that freedom by private interests.

x x x
x x x x licensees given the privilege of using scarce radio frequencies as
proxies for the entire community, obligated to give suitable time and attention
to matters of great public concern.

To
condition the granting or renewal of licenses on a willingness to present
representative community views on controversial issues is consistent with the
ends and purposes of those constitutional provisions forbidding the abridgment
of freedom of speech and freedom of the press.

Congress
need not stand idly by and permit those with licenses to ignore the problems
which beset the people or to exclude from the airways anything but their own
views of fundamental questions....

Licenses
to broadcast do not confer ownership of designated frequencies, but only the
temporary privilege of using them." 28.Referring to the contention that
although at one time the lack of available frequencies for all who wished to
use them justified the Government's choice, of those 139 who would best serve
the public interest by acting as proxy for those who would present differing
views, or by giving the latter access directly to broadcast facilities, the
said condition no longer prevailed to invite continuing control, the Court
held:

"Scarcity
is not entirely a thing of the past.

Advances
in technology, such as microwave transmission, have led to more efficient
utilisation of the frequency spectrum, but uses for that spectrum have also
grown apace.

Portions
of the spectrum must be reserved for vital uses unconnected with human
communication, such as radio-navigational aids used by aircraft-and vessels.
Conflicts have even emerged between such vital functions as defense
preparedness and experimentation in methods of averting n-ddair collisions
through radio warning devices. "Land mobile services" such as police,
ambulance, fire department, public utility, and other communications system
have been occupying an increasingly crowded portion of the frequency spectrum
and there are, apart from licensed amateur radio operators' equipment,
5,000,000 transmitters operated on the "citizens' band" which is also
increasingly congested. Among the various uses for radio frequency space,
including marine, aviation, amateur, military, and common carrier users, there
are easily enough claimants to permit use of the whole with an even smaller
allocation to broadcast radio and television uses than now exists.

Comparative
hearings between competing applicants for broadcast spectrum space are by no
means a thing of the past. The radio spectrum has become so. congested that at
times it has been necessary to suspend new applications. The very high
frequency television spectrums, in the country's major markets, ahmost entirely
occupied, although space reserved for ultra high frequency television
transmission, which is a relatively recent development as a commercially viable
alternative, has not yet been completely filled.

The rapidity
with which technological advances succeed one another to create more efficient
use of spectrum space on the one hand, and to create new uses for that space by
ever growing numbers of people on the other, makes it unwise to speculate on
the future allocation of that space. It is enough to say that the resource is
one of considerable and growing importance whose scarcity impelled its
regulation by an agency authorised by Congress. Nothing in this record, or in
our own researches, convinces us that the resource is no longer one for which
there are more immediate and potential uses than can be accommodated, and for
which wise planning is essential. This does not mean, of course, that every
possible wavelength must be occupied at every hour by some vital use in order
to sustain the congressional judgment.

The
substantial capital investment required for many uses, in addition to the
potentiality for confusion and interference inherent in any scheme for
continuous kaleidoscopic reallocation of all available space may make this
unfeasible. The allocation need not be made at such a breakneck pace that the
objectives of the allocation are themselves imperiled.

Even
where there are gaps in spectrum utilization, the fact remains that existing
broadcasters have often attained their present position because of their
initial government selection in competition with others before new
technological advances opened new opportunities for further uses. Long
experience in broadcasting, confirmed habits of listeners and viewers, network affiliation,
and other advantages in program procurement give existing broadcasters a
substantial advantage over new entrants, even where new entry is
technologically possible. These 140 advantages are the fruit of a preferred
position conferred by the Government. Some present possibility for new entry by
competing stations is not enough, in itself, to render unconstitutional the
Government's effort to assure that a broadcaster's programming ranges widely
enough to serve the public interest.

In
view of the scarcity of broadcast frequencies, the Government's role in al-
locating those frequencies, and the legitimate claims of those unable without
governmental assistance to gain access to those frequencies for expression of
their views, we hold the regulations and ruling at issue here are both
authorized by statute and constitutional."

29. In
Columbia Broadcasting System etc. etc. v. Democratic National Committee etc.
etc.[412 US 94 : 36 L Ed 2d 772], in separate decisions rejecting the
contentions that the general policy of certain radio and television broadcast
licensees of not selling any editorial advertising time to individuals or
groups wishing to speak out on public issues violated the Federal
Communications Act of 1934 and the First Amendment, such contentions having
been asserted in actions instituted by a national Organisation of businessmen
opposed to United States involvement in Vietnam and by the Democratic National
Committee, the US Court of Appeals for the District of Columbia Circuit
reversed the Commission.

However,
the US Supreme Court reversed the Court of Appeals.

Burger,
C.J. expressing the views of the six members of the Court held:

"...[1]
the First Amendment issues involved in the case at bar had to be evaluated
within the framework of the statutory and regulatory scheme that had developed
over the years, affording great weight to the decisions of Congress and the
experience of the Federal Communications Commission, and

[2] under
the Federal Communications Act and the Commission's "fairness
doctrine," broadcast licensees had broad journalistic discretion in the
area of discussion of public issues. It was also held, expressing the views of
five members of the court [Part IV of the opinion], that

[3]
neither the public interest standards of the Federal Communications Act nor the
First Amendment, assuming that there was governmental action for First
Amendment purposes, required broadcasters to accept editorial advertisements,
notwithstanding that they accepted commercial advertisements, and

[4]
the Commission was justified in concluding that the public interest would not
be served by a system affording a right of access to broadcasting facilities
for paid editorial advertisements, since such a system would be heavily
weighted in favor of the financially affluent, :would jeopardize effective
operation of the Commission's "fairness doctrine", and would increase
government involvement in broadcasting by requiring the Commission's daily
supervision of broad- casters' activities...... a broadcaster's re- fusal to
accept any editorial advertisements was not governmental action for purposes of
the First Amendment, since private broadcasters, even though licensed and
regulated to some extent by the government, were not instrumentalities or
"partners" of the government for First Amendment purposes, and since
the Commission, in declining to reject the broadcasters' policies against
accepting editorial -advertisements, had not fostered or required such
policy".

30.It
may be mentioned here that unlike in this country, in United States, the
private individuals and institutions are 141 given licences to have their own
broadcasting stations and hence the right of the private broadcasters against
the right of others who did not own the broadcasting stations but asserted
their right of free speech and expression were pitted against each other in
this case and the decision has mainly turned upon the said balancing of rights
of both under the First Amendment. It was in substance held that any direction
to the private broadcasters by the Government to sell advertising time to speak
out on public issues violated the protection given by the First Amendment to
the private broadcasters against Government control.

31.In
Federal Communications Commission et al. v. WNCN Listeners Guild et al. [450 Us
582 : 67 L Ed 2d 521], a number of citizen groups interested in fostering and
preserving particular entertainment formats petitioned for review of the Policy
Statement of Federal Communications Commission [FCC] in the US Court of Appeals
for the District of Columbia Circuit. The Court held that the Policy Statement
was contrary to the Communications Act of 1934.

The US
Supreme Court reversed the decision of the Court of Appeals by majority,
holding, inter alia, that the Policy Statement was not inconsistent with the
Communications Act since the FCC provided a rational explanation for its
conclusion that reliance on the market was the best method of promoting
diversity in entertainment formats and that the FCC's judgment regarding how
the public interest is best served was entitled to substantial judicial
deference and its implementation of the public interest standard, when based on
a rational weighing of competing policies was not to be set aside. Marshall and
Brennan, JJ., however, held that in certain limited circumstances, the FCC may
be obliged to hold a hearing to consider whether a proposed change in a
licensee's entertainment programme format is in the public interest and that
the FCC's Policy Statement should be vacated since it did not contain a safety
valve procedure that allowed the FCC the flexibility to consider applications
for exemptions based on special circumstances and since it failed to provide a
rational explanation for distinguishing between entertainment and
non-entertainment programming for purposes of requiring Commission review of
format changes.

32.In
City of Los Angeles & Department of Water and Power v. Preferred
Communications, Inc. [476 US 488: 90 L ed 2d 480], a cable television company
asked a public utility and the city of Los Angeles's water and power department
for permission to lease space on their utility poles in order to provide cable
television service to part of the city. The respondent-company was told that it
must first obtain franchise from the appellant-City which refused to grant one
on grounds that the company had failed to participate in an auction that was to
award a single franchise in the area.

The
respondent sued claiming violation of his right under the free speech clause of
the First Amendment. It was alleged in the complaint that there was sufficient
physical capacity and the economic demand in the area at issue to accommodate
more than one cable company and that the city's auction process allowed it to
discriminate among applicants.

As
against this, the appellant argued that lack of space on public utility
structures, the limited economic demand, and the practical and aesthetic
disruptive effects on the public right of way justified 142 its decision. The
District Court dismissed the complaint.

On
appeal, the US Court of Appeals reversed and remanded ',or further proceedings.
The US Supreme Court affirmed the Court of Appeals. Rehnquist, J. expressing
the unanimous decision of the Court held:

"...[1]that
the cable television company's complaint should not have been dismissed, since
the activities in which it allegedly, sought to engage plainly implicated First
Amendment interests where they included the communications of messages on a
wide variety of topics and in a wide variety of formats, through original
programming or by exercising editorial discretion over which stations or
programs to include in its repertoire, but

[2] that
it was not desirable to express any more detailed views on the proper
resolution of the First Amendment question without a more thor- oughly
developed record of proceedings in which the parties would have an opportunity
to prove those disputed factual assertions upon which they relied." 33.The
position of law on the freedom of speech and press has been explained in [16 Am
Jur 2d 3431 as under:

"The
liberty of the press was initially a right to publish without a license that
which formerly could be published only with one, and although this freedom from
previous. restraint upon publication could not be regarded as exhausting the
guaranty of liberty, the prevention of that restraint was a leading purpose in
the adoption of the First Amendment. It is well established that liberty of the
press historically considered and taken up by the Federal Constitution, means
principally, although not exclusively, immunity from previous restraints or
censorships. Stated differently, the rule is that an essential element of the
liberty of the press is its freedom from all censorships over what shall be
published and exemption from control, in advance, as to what shall ap- pear in
print....

x x x
x x x The freedom of speech and press embraces the right to distribute
literature, and necessarily protects the right to receive literature which is
distributed. It is said that liberty in circulating is as essential to the
freedom as liberty of publishing, since publication without circulation would
be of little value.

The
right or privilege of free speech and publication, guaranteed by the
constitutions of the United States and of the several states, has its
limitations and is not an absolute right, although limitations are recognised
only in exceptional cases.

x x x
x x x The question of when the right of free speech or press becomes wrong by
excess is difficult to determine. Legitimate attempts to protect the public,
not from the remote possible effects of noxious ideologies, but from present
excesses of direct, active conduct are not presumptively bad because they
interfere with and in some of their manifestations restrain the exercise of the
First Amendment rights. The issue in every case is whether the words used are
used hi such circumstances and are of such a nature as to create a clear and
present danger that they will bring about substantive evils which the federal
or state legislatures have a right to prevent; it is a question of proximity
and degree.

x x x
x x x x The freedoms of speech and press are not limited to particular media of
ex- 143 pression. Verbal expression is, of course, protected, but the right to
express one's views in an orderly fashion extends to the communication of ideas
by handbills and literature as well as by the spoken word.

Picketing
carried on in a non labor context, when free from coercion, intimidation, and
violence, is constitutionally guaranteed as a right of free speech."

34. In
"Civil Liberties & Human Rights" authored by David Feldman, the
justification for and limits of freedom of expression are stated in the
following words.

The
liberty to express one's self freely is important for a number of reasons.
Firstly, self-expression is a signifi- cant instrument of freedom of conscience
and self- fulfillment. Second justification concerns epistemology.

Freedom
of expression enables people to contribute to debates about social and moral
values. The best way to find the best or truest theory or model of anything is
to permit the widest possible range of ideas to circulate. Thirdly, the freedom
of expression allows political discourse which is necessary in any country
which aspires to democracy. And lastly, it facilitates artistic scholarly
endeavours of all sorts.

35.
The obvious connection between press freedom and freedom of speech is that the
press is a medium for broadcasting information and opinion. Firstly, media
freedom as a tool of self-expression is a significant instrument of personal
autonomy. Secondly, as a channel of communication, it helps to allow the
political discourse in a democracy. Thirdly, it helps to provide one of the
essential conditions in scholarships making possible the ex- change and
evaluation of theories, explanations and discoveries, and lastly, it helps to
promulgate a society's cultural values and facilitates the debate about them,
ad- vancing the development and survival of civilisation.

36.Referring
to the reasons for regulating the broadcasting media, the learned author has
stated that, first, the Government realises the potential of channels of mass
communication for contributing to democracy or undermining it. They hoped to
foster a public service ethos in broadcastings so that it would be a medium for
educating and improving the population. Secondly in order to do this its was
necessary to keep the media of mass communications from having programme policy
dictated entirely by market forces. A strong pubic sector and regulation of the
inde- pendent sector when one started to operate, were called for.

Thirdly,
when commercial broadcasters appeared on the scene, 1 and a regulatory scheme
was being developed for them, it was thought to be important to preserve a
diversity of ideas by preventing oligopolistic concentrations of power in the
hands of a few, usually rich and conservative media magnates, and to ensure
that licences were granted only to people who could be expected not to abuse
the privilege.

The
need to preserve propriety has been a motivating factor in the regulation of
commercial broadcasting over much of the world. Fourthly, government hoped to
ensure that civilised standards were maintained, to uphold social values.
Fifthly, wave lengths for broadcasting were limited. This purely technical
consideration sharply distinguishes broadcasting from newspapers, and justifies
a higher level of regulation. In theory, if not in practice, there is nothing
to prevent any number of newspapers being pub- 144 lished simultaneously. The
only controlling mechanism needed is that of market forces. This is not true of
broadcasting. Some control over the allocation of wave- lengths is 'needed in
order to ensure that there are sufficient for all legitimate broadcasters.
Lastly, another legitimate object of national regulation is to protect the
intellectual property rights of programme makers and broadcasters. It is
permissible on this ground for an Organisation to prevent people from getting
access to programmes without paying proper licence fees. One way of preventing
this is to encode programme transmissions and to restrict access to decoders to
people who pay the fee.

37.
The freedom to receive and to communicate information and ideas without
interference is an important aspect of the freedom of free speech and
expression. We may in this connection refer to Article 10 of the European
Convention on Human Rights which states as follows:

"
10.1. Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.

This
article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.

2. The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are -prescribed by law and are necessary in a democratic
society, in the interests of na- tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or crime, for the protection of
health or morals.

for
the protection of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for maintaining the
authority and impartiality of the judiciary." 38.The next question which
is required to be answered is whether there is any distinction between the
freedom of the print media and that of the electronic media such as radio and
television, and if so, whether it necessitates more restrictions on the latter
media.

39.
Eric Barendt in his book titled " Broadcasting Law [1993 Edn.] which
presents a comparative study of the law in five' legal systems, viz., Great
Britain, France, Germany, Italy and United States of America, has dealt with
the subject succinctly. He has referred to a number of reasons which are
generally put forward to justify broadcasting regulations and has dealt with
each of them. The first reason advanced is that because the airwaves are a
public resource, the Government or some agency on its behalf, is entitled to
license their use for broadcasting on the terms it sees fit. A similar argument
can now be deployed in respect of cable broadcasting where an authority must
give permission before roads can be dug up for laying cable. The learned author
states that the case is unconvincing for it infers that it is right for the
Government to regulate broadcasting from the fact that it has opportunity to do
this. It would be perfectly possible for Government to allocate frequencies for
cable franchises without programme conditions on the basis of a competitive
tender and allow the resale by the purchaser. The argument, according to the
author, therefore, does not work. It does not justify broadcasting regulations
but almost explains how it is feasible. The author, however, does not accept
the objection to this 145 reason for regulation that thereby Government acts
improperly by using their licensing power to purchase broadcasters'
constitutional right to speech. According to the author, this argument is less
persuasive as it assumes that broadcasters enjoy the same constitutional rights
of free speech as individuals talking in a bar or leafletting in a high street.
The author then deals with the second reason given for regulation of
broadcasting, viz., scarcity of frequencies and points out that this argument
referred to in Red Lion Broadcasting case [supra] is less clear than ap- pears
at first sight, since it is not clear whether the scarcity of frequencies
refers to the limited number allocated by the Government as available for
broadcasting or to the actual numerical shortage of broadcasting stations.

If it
is the former, the scarcity is an artificial creation of the Government rather
than a natural phenomenon since it reserves a number of frequencies for the use
of the army, police and other public services. The Government is then not in a
good position to argue for restrictions on broadcasters' freedom. The author
then points out that as far as the actual scarcity of broadcasting stations is concerned,
there has been an increase in the last 20 years in the broadcasting stations in
the United States while there are fewer newspapers than there used to be.
Similar developments have occurred in European countries in the same period,
especially, since the advent of cable and satellite.

Further
the scarcity argument cannot be divorced from economic considerations. The
shortage of frequencies and the high cost of starting up broadcasting channel
explain their dearth in comparison with the number of newspapers and magazines
in 1961. However, it is now probably as difficult to finance a new newspaper as
it is a private television channel, if not more so. Lastly, the author points
out that the scarcity argument is much less tenable than it used to be. Cable
and satellite have significantly increased the number of available or
potentially available channels so that there are more broadcasting outlets than
there are national or local daily newspapers. Dealing with the third reason
advocated for giving differential treatment to the broadcasting, viz., the
character of the broadcasting media, the author points out that it is said that
television and radio, are more influential on public opinion than the press, or
at least are widely thought to be so. The majority of the US Supreme Court in
FCC v. Pacifica Foundation [438 US 726] said that they intrude into the home
and are more pervasive and are more difficult to control than the print media.
In particular, it is hard to prevent children from being exposed to broadcast
while it is relatively easy to stop them looking at magazines and papers which
in any case they will not be able to read or purchase. These grounds underpin
the extension of legal control in Britain over violent and sexually explicit
programmes through the establishment of Broadcasting Standard Council and the
strengthening of the impartiality rules. In Third Television Case [57 B Verf GE
295, 3 22-3 (198 1)] the Ger- man Constitutional Court dealing with a different
version of this argument has held that regulation is necessary to guarantee
pluralism and programme variety, whether or not there is a shortage of
frequencies and other broadcasting outlets. The free market will not provide
for broadcasting the same variety found in the range of press and magazine
titles. Hence programme content should be regulated and the media monopolies
should be cut down by the application of anti-trust laws. Thus both the 146 US
and the German arguments lay stress on the power of television and its unique
capacity to influence the public.

According
to the learned author, the arguments are difficult to assess. Broadcasting does
not intrude into the home unless listeners and viewers want it to be. From the
point of view of constitutional principles it is not easy to justify imposition
of greater limits on the medium on the ground that it is more influential than
the written words.

It
cannot be right to subject more persuasive types of speech to greater
restraints than those-imposed on less effective varieties. The author, however,
accepts the view of the majority of the US Supreme Court in Pacifica case
[supra] which regarded broadcasting, particularly television, as a uniquely
pervasive presence in the lives of most people. More time is spent watching
television than reading. The presence of sound and picture in any home makes it
an exceptional potent medium. It may also be harder to stop children having
access to 'adult material' on television than to pornographic magazines. This
may not apply to subscription channels, enjoyment of which is dependent on a
special decoder. He also agrees that experience in the United States and more recently in Italy suggests that a free broadcasting
market does not produce the same variety as the press and book publishing
markets do. However, the author states that these three justifications for
broadcasting regulation are inconclusive and it is doubtful whether the case is
powerful enough to justify the radically different legal treatment of the press
and broadcasting media. A separate question, according to the author, is
whether it is appropriate to continue to treat radio in the same way as
television since there is generally a large choice of local, if not national
radio programmes and it is hard to believe that it exercises a dominating
influence on the formation of public attitudes.

The
same question arises In respect of cable television.

Although
a licence has to be obtained from a licensing authority, several franchises may
be physically accommodated and a wide band cable system may be able to carry
upto 30 or 40 or even more channels. The scarcity rational, therefore, seems
inapplicable to cable, and further it is hard to believe that this mode of broadcasting
exercises such a strong influence that stringent programme regulation is
justifiable. Dealing with the last reason advocated by a leading American
scholar, Lee Bollinger in his article "Freedom of the Press and Public
Access" and his essay "The Rational of Public Regulation of the
Media" and in "Democracy and the MassMedia" [Cambridge (1990)]
for the divergent treatment of the press and broadcasting media, the author
points out that Bollinger accepts that there is no fundamental difference in the
character of the two mass media, but argues that broadcasting being still
relatively new means of mass communication, it is understandable that society
has wanted to regulate it just as it has treated the cinema with more caution
than it has the theater. This argument of Bollinger is based on the history of
the two media. Bollinger's second argument is that society is entitled to
remedy the deficiencies of an unregulated press with a regulated broadcasting
system which may be preferable to attempting to regulate both sectors...
According to Bollinger, regulation poses the danger of Government con- trol, a
risk which is reduced if one branch of the media is left free. The author
attacks this reason given by Bollinger and states that it is an unsatisfactory
compro- mise. If the regulation of the press is al- 147 ways wrong and perhaps
unconstitutional and if there is no significant difference between the two
media, it follows that the latter should also be wholly unregulated. The author
also points out that Bollinger's argument attempts to justify the unequal
treatment of the liberties of the broadcasters and newspaper proprietors and
editors when in all material respects, their position is identical.

40.
The author then refers to the rights of viewers and listeners which is referred
to in Red Lion Broadcasting case [supra] by White, J. of the US Supreme Court
in the following words:

"But
the people as a whole retain their interest in free speech by radio and their
collective right to have the medium function consistently with the ends and
purposes of the First Amendment. It is the right of viewers and listeners, not
the right of the broadcasters, which is paramount".

41.The
author concludes by pointing out that the cases from a variety of jurisdictions
show that the broadcasters programme freedom when exercised within the
constraints imposed by the regulatory authority, has priority over the rights
claimed by viewers to see a particular programme or to retain a particular
series in the schedule. On the other hand, the interests of viewers and
listeners justify the imposition of programme standards which would not be
countenanced for the press or publishing. It is recognised by the
constitutional courts of European countries that viewers and listeners have interests,
and they should be taken into account in the interpretation' of broadcasting
freedom. But the balancing of the rights of the broadcasters and viewers is
done by regulatory authority.

Courts
are understandably reluctant to contemplate the interference with
administrative discretion which would result from their recognition of
individual rights.

42.Dealing
with the right to access to broadcasting, the author points out that the
theoretical argument in this connection is that freedom of speech means freedom
to communicate effectively to a mass audience and nowadays that entails access
to the mass media. The rights to access provide some compensation for the
expropriation by the public monopoly of the freedom to broadcast. In the
absence of a justification for that monopoly, there would be a right to
broadcast in the same way that everyone has a right to say or write what he
likes in his own home. This would justify the recognition of access to both
public and private channels. The -author states that these arguments are
unacceptable. Freedom of speech does not entail any right to communicate
effectively in the sense that a citizen can call upon the State to provide him
with the most effective means for the purpose. He points out that no legal
system provides its citizens with the means and opportunities to address the
Public in the way each considers most ap- propriate. Moreover, to grant
everyone a right to use an access channel, even if available all the time,
would be to give every adult a worthless right to use it for a second a year.
Limited access rights, enjoyed only by important political and social groups
may be more valuable. But even their recognition would involve some
interference with the editorial freedom of channel controllers and programme
schedulers and it may be more difficult as a Consequence to achieve a balanced
range or programmes. Further, a channel might find it hard to create any clear
identity for 148 itself, if it had to devote a substantial amount of time to
relaying the programmes made by pressure groups. There are also practical
objections to access rights. It may be very difficult to decide, for example,
which groups are to be given access, and when and how often such programmes are
to be shown. There is a danger that some groups will be unduly privileged.
These points weigh particularly heavily against the recognition of
constitutional rights, for courts are not competent to formulate them with any
precision.

Dealing
with the constitutional rights of access to the broadcasting media, the author
concludes that individuals and groups do not have constitutional rights of
access to the broadcasting media. Access rights can only be framed effectively
by legislature or by specialist administrative agencies. It does not mean that statutory
or other access rights do not have a constitutional dimension. The courts may
lay down that some provisions should be made for access as a matter of
constitutional policy. This, however, does not mean that there are individual
constitutional rights to access.

43. In
this connection, the author also points out that the development of cable poses
new access problems. Operator of the cable may himself have rights of free
speech which would be infringed by a requirement to honour access claims. The
scarcity and economic arguments which are employed to justify broadcasting
regulation and, therefore, access provision, may be less applicable in the
context of cable.

44. We
may now summarise the law on the freedom of speech and expression under Article
19 [1] (a) as restricted by Article 19 [2]. The freedom of speech and
expression includes right to acquire information and to disseminate it.

Freedom
of speech and expression is necessary, for self expression which is an
important means of free conscience and self fulfillment. It enables people to
contribute to debates of social and moral issues. It is the best way to find a
truest model of anything, since it is only through it, that the widest possible
range of ideas can circulate.

It is
the only vehicle of political discourse so essential to democracy. Equally
important is the role it plays in facilitating artistic and scholarly
endeavours of all sorts.

The
right to communicate, therefore, includes right to communicate through any
media that is available whether print or electronic or audio-visual such as
advertisement, movie, article, speech etc. That is why freedom of speech and
expression includes freedom of the press. The freedom of the press in terms
includes right to circulate and also to determine the volume of such
circulation. This freedom includes the freedom to communicate or circulate
one's opinion without interference to as large a population in the country as
well as abroad as impossible to reach.

45.
This fundamental right can be limited only by reasonable restrictions under a
law made for purpose mentioned in Article 19 [2] of the Constitution.

46.
The burden is on the authority to justify the restrictions. Public order is not
the same thing as public safety and hence no restrictions can be placed on the
right to freedom of speech and expression on the ground that public safety is
endangered. Unlike in the American Constitution, limitations on fundamental
rights are specifi- cally spelt out under Article 19 [2] of our Constitution.

Hence
no restrictions can 149 be placed on the right to freedom of speech and
expression on grounds other than those specified under Article 19 [2].

47.
What distinguishes the electronic media like they television from the print
media or other media is that it has both audio and visual appeal and has a more
pervasive presence. It has a greater impact on the minds of the viewers and is
also more readily accessible to all including children at home. Unlike the
print media, however, there is a built-in limitation on the use of electronic
media because the airwaves are a public property and hence are owned or
controlled by the Government or a central national authority or they are not
available on account of the scarcity, costs and competition.

48.
The next question to be answered in this connection is whether there can be a
monopoly in broadcasting/telecasting.

Broadcasting
is a means of communication and, therefore, a medium of speech and expression.
Hence in a democratic polity, neither any private individual, institution or
Organisation nor any Government or Government Organisation can claim exclusive
right over It. Our Constitution also forbids monopoly either in the print or
electronic media.

The
monopoly permitted by our Constitution is only in respect of carrying on a
trade, business, industry or service under Article 19 [6] to subserve the
interests of the general public. However, the monopoly in broadcasting and
telecasting is often claimed by the Government to utilise the public resources
in the form of the limited frequencies available for the benefit of the society
at large. It is Justified by the Government to prevent the concentration of the
frequencies in the hands of the rich few who can information to suit their
interests and thus in fact to control and manipulate public opinion in effect
smothering the right to freedom of speech and expression and freedom of
information of others. The claim to monopoly made on this ground may, however,
lose all its raison d'etre if either any section of the society is unreasonably
denied an access to broadcasting or the Governmental agency claims exclusive
right to prepare and relay programmes. The ground is further not available when
those claiming an access either do not make a demand on the limited frequencies
controlled by the Government or claim the frequency which is not utilised and
is available for transmission. The Government sometimes claims monopoly also on
the ground that having regard to all pervasive presence and impact of the
electronic media, it may be utilised for purposes not permitted by law and the
damage done by private broadcasters may be irreparable. There is much to be
said in favour of this view and it is for this reason that the regulatory
provisions including those for granting licences to private broadcasting where
it is permitted, are enacted. On the other hand, if the Government is vested
with an unbridled discretion to grant or refuse to grant the license or access
to the media, the reason for creating monopoly will lose its validity. For then
it is the government which will be enabled to effectively suppress the freedom
of speech and expression instead of protecting it and utilising the licensing
power strictly for the purposes for which it is conferred. It is for this
reason that in most of the democratic countries an independent autonomous
broadcasting authority is created to control all aspects of the operation of
the electronic media. Such authority is represen- 150 tative of all sections of
the society and is free from control of the political and administrative
executive of the State.

49. In
this country, unlike in the United States
and some European countries, there has been a monopoly of
broadcasting/telecasting in the Government. The Indian Telegraph Act, 1885
[hereinafter referred to as the "Telegraph Act"] creates this
monopoly and vests the power of regulating and licensing broadcasting in the
Government.

Further,
the Cinematograph Act, 1952 and the Rules made thereunder empower the
Government to pre-censor films.

However,
the power given to the Government to license and to pre-censor under the
respective legislations has to be read in the context of Article 19 [2] of the
Constitution which sets the parameters of reasonable restrictions which can be
placed on the right to freedom of speech and expression.

Needless
to emphasise that the power to pre-censor films and to grant licences for
access to telecasting, has to be exercised in conformity with the provisions of
Article 19 [2]. It is in this context that we have to examine the provisions of
Section 4 [1] of the Telegraph Act and the action of the MIB/DD in refusing
access to telecast the cricket matches in the present case.

50.
The relevant Section 4 of the Telegraph Act reads as follows:

"4.(1)
Within India the Central Government shall have the exclusive privilege of
establishing, maintaining and working tele- graphs:

Provided
that the Central Government may grant a licence, on such conditions and in
consideration of such payments as it thinks fit, to any person to establish, maintain
or work a telegraph within any part of India Provided further that the Central
Government may, by rules made under this Act and published in the Official
Gazette, permit, subject to such restrictions and conditions as it thinks fit,
the establishment, maintenance and working - (a) of wireless telegraphs on
ships within India territorial waters and on aircraft within or above India or
Indian territorial waters and (b) of telegraphs other than wireless telegraph
within any part of India.

(2)
The Central Government may, by no- tification in the Official Gazette, delegate
to the telegraph authority all or any of its powers wider the first proviso to
sub-section (1).

The
exercise by the telegraph authority of any power so delegated shall be subject
to such restrictions and conditions the Central Government may, by the
notification, think fit to impose."

51.
Section 3 (1) of the Act defines 'telegraph' as under:

"3.
(1) "telegraph" means any appliance, instrument, material or
apparatus used or capable of use for transmission or reception of signs,
signals, writing, images and sounds or intelligence of any nature by wire,
visual or other electromagnetic emissions, Radio waves Hertzian waves,
galvanic, electric or magnetic means.

52. It
Is clear from a reading of the provisions of Sections 4 [1] and 3 [1] together
that the Central Government has the exclusive privilege of establishing,
maintaining and working appliances, instruments, material or apparatus used or
capable of use for transmission or reception of signs, signals, images and
sounds or intelligence of any nature by wire, visual or other electromagnetic
emissions, Radio wayes or Hertzian waves, galvanic, electric or magnetic means.

Since
in the present case the controversy centres round the use of airwaves or
hertzian waves [hereinafter will be called as "electro-magnetic
waves"], as is made clear by Explanation to section 3(1), the Central
Government can have monopoly over the use of the electromagnetic waves only of
frequencies lower than 3000 giga-cycles per second which are propagated in
space with or without artificial guide. In other words, if the electromagnetic
waves of frequencies of 3000 or more giga-cycles per second are propagated in
space with or without artificial guide, or if the electro-magnetic waves of
frequencies of less than 3000 give-cycles per second are propagated with an
artificial guide, the Central Government cannot claim an exclusive right to use
them or deny its user by others. Since no arguments were advanced on this
subject after the closure of the arguments and pending the decision, we had directed
the parties to give their written submissions on the point. The submissions
sent by them disclosed a wide conflict which would have necessitated further
oral arguments. Since we are of the view that the present matter can be decided
without going into the controversy on the subject, we keep the point open for
decision in an appropriate case. We will presume that in the present case the
dispute is with regard to the use of electromagnetic waves of frequencies lower
than 3000 giga- cycles per second which are propagated in space without
artificial guide. 53. The first proviso to Section 4 (1) states that the
Central Government may grant licence on such conditions and in consideration of
such payment as it thinks fit, to any person, to establish, maintain or work a
telegraph within any part of India. We are not concerned here with the
permission to establish or maintain a telegraph because in the present case the
permission is sought only for operating a telegraph and that too for a limited
time and for a limited and specified purpose. The purpose again is
non-commercial. It is to relay the specific number of cricket matches. It is
only incidentally that the CAB will earn some revenue by selling its right to
relay the matches organised by it. The CAB is obviously not a business or a
commercial organisation nor can it be said that it is organising matches for
earning profits as a business proposition. As will be pointed out later, it is
a sporting Organisation devoted to the cause of cricket and has been organising
cricket matches both of internal and international cricket teams for the
benefit of the sport, the cricketers, the sportsmen present and prospective and
of the viewers of the matches.

The
restrictions and conditions that the Central Government is authorised to place
under S. 4 [1] while permitting non-wireless telegraphing can, as stated
earlier, only be those which are warranted by the purposes mentioned in Article
19 [2] and none else. It is not and cannot be the case of the Government that by
granting the permission in question, the sovereignty and integrity of India,
the security of the State, 152 friendly relations with foreign States, public
order, decency or morality or either of them will be in jeopardy or that the
permission will lead to the contempt of court, defamation or incitement to an
offence. On the other hand, the arguments advanced are specious and with them
we will deal a little later.

54. It
is then necessary to understand the nature of the respondent Organisation,
namely, CAB. It cannot be disputed that the BCCI is a non-profit making
Organisation which controls officially organised game of cricket in India.

Similarly,
Cricket Association of Bengal (CAB) is also non- profit making Organisation
which controls officially organised game of cricket in the State of West
Bengal. The CAB is one of the Founder Members of BCCI. Office bearers and
Members of the Working Committees of both BCCI and CAB are all citizens of
India. The primary object of both the organisations, amongst others, is to
promote the game of cricket, to foster the spirit of sportsmanship and the
ideals of cricket, and to impart education through the media of cricket, and
for achieving the said objects, to organise and stage tournaments and matches
either with the members of International Cricket Council (ICC) or other
organisations.

According
to CAB, BCCI is perhaps the only sports- organisation in India which cams
foreign exchange and is neither controlled by any Governmental agency nor
receives any financial assistance or grants, of whatsoever nature.

55. It
cannot be disputed further that to arrange any international cricket tournament
or series. it is necessary and a condition-precedent, to pay to the
participating member countries or teams, a minimum guaranteed amount in foreign
exchange and to bear expenses incurred for travelling, boarding, lodging and
other daily expenses for the participating cricketeers and the concerned
accompanying visiting officials. A huge amount of expenses has also to be
incurred for organising the matches. In addition, both BCCI and CAB annually
incur large amount of expenses for giving subsidies and grants to its members
to maintain, de- velop and upgrade the infrastructure, to coach and train
players and umpires, and to pay to them when the series and matches are played.

56.Against
this background, we may now examine the questions of law raised by the parties.
The contention of the Min- istry of Information and Broadcasting (MIB) is that
there is a difference between the implications of the right conferred under
Article 19 [1] (a) upon [i] the broadcaster i.e. the person operating the
media, [ii] the person desiring access to the media to project his views
including the organiser of an event, [iii] the viewer and [iv] a person seeking
uplinking of frequencies so as to telecast signals generated in India to other
countries. The contention of CAB that denial of a license to telecast through a
media of its choice, based [according to NM] upon the commercial interests,
infringes viewers' right under Article 19 [1] (a) is untenable. It is further
contended that the commercial interests of the organizer are not protected by
Article 19 [1] (a). However, the contention of the CAB results indirectly in
such protection being sought by resort to the following steps of reasoning :
[a] the, Board has a right to commercially exploit the event to the maximum,
[b] the viewer has a right to access to the event through 153 the television.
Hence the Board has the right to telecast through an appropriate channel and
also the right to insist, that a private agency including a foreign agency,
should be allowed all the sanctions and permissions as may be necessary
therefor.

57.According
to NUB the aforesaid contention is untenable because even if it is assumed that
entertainment is a part of free speech, the analogy of the right of the press
under Article 19 [1] (a) vis-a-vis the right under Article 19 [1] (g), cannot
be extended to the right of sports associations.

The
basic premise underlying the recognition of the rights of the press under
Article 19 [1] (a) is that the economic strength is vitally necessary to ensure
independence of the press, and thus even the 'business' elements of a newspaper
have 'to some extent a 'free speech' protection. In other words the commercial
element of the press exists to subserve the basic object of the press, namely,
free dissemination of news and views which enjoys the protection of free
speech.

However,
free speech element in telecast of sports is incidental. According to the MIB,
the primary object of the telecast by the CAB is to raise funds and hence the
ac- tivities are essentially of trade. The fact that the profits are deployed
for promotion of sports is immaterial for the purpose.

58. It
is further urged that a broadcaster does not have a right as such to access to
the airwaves without a license either for the purposes of telecast or for the
purposes of uplinking. Secondly, there is no general right to a license to use
airwaves which being a scarce resource, have to be used in a manner that the
interests of the largest number are best served. The paramount interest is that
of the viewers. The grant of a license does not confer any special right
inasmuch as the refusal of a license does not result in the denial of a right
to free speech. Lastly, the nature of the electronic media is such that it
necessarily involves the marshaling of the resources for the largest public
good. The state monopoly created as a device, to use the resource is not per se
violative of the right of free speech as long as the paramount interests of the
viewers are subserved and access to the media is governed by the fairness
doctrine. According to the MIB, the width of the rights under Article 19 [1]
(a) has never been considered to be wider than that conferred by the First
Amendment to the U.S. Constitution. It is also urged that the licensing of
frequencies and consequent regulation of telecast/broadcast would not be a
matter covered by Article 19 [2]. The-right to telecast/broadcast has certain
inherent limitations imposed by nature, whereas Article 19(2) applies to
restrictions imposed by the State. The object of licensing is not to cast
restrictions on the expression of ideas, but to regulate and Marshall scarce
resources to ensure their optimum enjoyment by all including those who are not
affluent enough to dominate the media.

59.It
is next urged that the rights of an organiser to use airwaves as a medium to
telecast and thereby propagate his views, are distinct from his right to
commercially exploit the event. Although it is conceded that an organiser
cannot be denied access on impermissible grounds, it is urged that he cannot
further claim a right to use an agency of his choice as a part of his right of
free speech. In any event no person can claim to exercise his right under
Article 19 [1] (a) in a manner which makes it a device for a non- citizen 154
to assert rights which are denied by the Constitution.

According
to MIB, it is the case of the BCCI that to promote its commercial interest, it
is entitled to demand that the Government grants all the necessary licenses and
permissions to any foreign agency of its choice and a refusal to do so would
violate Article 19 [1] (a). According to MIB, this is an indirect method to
seek protection of Article 19 [1] (a) to the non-citizens.

60. It
is then contended that a free speech right of a viewer has been recognised as
that having a paramount im- portance by the US Supreme Court and this view is
all the more significant in a country like ours. While accepting that the
electronic media is undoubtedly the most powerful media of communication both
from the perspective of its reach as well as its impact, transcending all
barriers in- cluding that of illiteracy, it is contended that it is very cost-intensive.
Unless, therefore, the rights of the viewers are given primacy, it will in
practice result in the affluent having the sole right to air their views
completely eroding the right of the viewers. The right of viewer can only be
safeguarded by the regulatory agency by controlling the frequencies of
broadcast as it is otherwise impossible for viewers to exercise their right to
free speech qua the electronic media in any meaningful way.

61.Lastly,
dealing with the contention raised on behalf of the CAB and BCCI that the
monopoly conferred upon DD is violative of Article 19 [1] (a), while objecting
to the contention on the ground that the issue does not arise in the present
proceedings and is not raised in the pleadings, it is submitted on behalf of NM
that the principal contentions of the CAB/BCCI are that they are entitled to
market their right to telecast event at the highest possible value it may
command and if the DD is unwilling to pay as much as the highest bidder, the
CAB/BCCI has the right not only to market the event but to demand as of right,
all the necessary licences and permissions for the agency including foreign
agency which has purchased its rights. According to MIB these contentions do
not raise any free-speech issues, but impinge purely on the right to trade. As
far as Article 19 [1] (g) is concerned, the validity of the monopoly in favour
of the Government is beyond question. Secondly, in the present case, the DD did
not refuse to telecast the event per se. It is then submitted that the CAB/BCCI
are not telecasters. They arc only organisers of the events sought to be
telecast and when the agency like DD which has access to the largest number of
viewers agrees to telecast the events, their right as well as the viewers'
right under Article 19 [1] (a) is satisfied. No organiser, it is contended, can
insist that his event be telecast on terms dictated by him and refusal to agree
to his term constitutes, breach of his right under Article 19 [1] (a).

If it
is accepted that the Government has not only the, right but the duty to
regulate the distribution of frequencies, then the only way it can be done is
by creating a monopoly. A mere creation of the monopoly-agency to tele- cast
does not per se violate Article 19 [1] (a) as long as the access is not denied
to the media either absolutely or by imposition of terms which are
unreasonable. Article 19 [1] (a) proscribes monopoly in ideas and as long as
this is not done, the mere -fact that the access to the media is through the
Government-controlled agency, is not per se violative of Article 19 [1] (a).

155 It
is further urged that no material has been placed before the Court to show that
the functioning of the DD is such as to deny generally, an access to the media
and the control exercised by the Government is in substance over the content on
the grounds other than those specified in Article 19 [2] or a general
permission to all who seek frequencies to telecast, would better subserve the
principle underlying Article 19 [1] (a) in the socioeconomic scenario of this
country and will not result in passing the control of the media from the
Government to private agencies affluent enough to buy access.

62. As
against these contentions of the MIB, it is urged on behalf of CAB and BCCI as
follows:

The
right to organise a sports event inheres in the entity to which the right
belongs and that entity in this case is the BCCI and its members which include
the CAB. The right to produce event includes the right to deal with such event
in all manner and mode which the entity chooses. This includes the right to
telecast or not to telecast the event, and by or through whom, and on what
terms and conditions.

No
other entity, not even a department of the Government can coerce or influence
this decision or obstruct the same except on reasonable grounds mentioned under
Article 19 [2] of the Constitution. In the event the entity chooses to televise
its own events, the terms and conditions for televising such events are to be
negotiated by it with any party with whom it wishes to negotiate. There is no
law, bye-law, rule or regulation to regulate the conduct of the BCCI or CAB in
this behalf. In the event. BCCI chooses to enter into an agreement with an
agency having necessary expertise and infrastructure to produce signals, and
transmit and televise the event of the quality that BCCI/CAB desires, the terms
and conditions to be negotiated with such an entity, are the exclusive
privilege of BCCI/CAB. No department of the Government and least of all, the
MIB or DD is concerned with the same and can deny the BCCI or CAB same, the
benefit of such right or claim, much less can the MIB or DD can insist that
such negotiation and finalisation only be done with it or not otherwise.

63. In
the event the BCCI or CAB wishes to have the event televised outside India, What is required is that the
required cameras and equipments in the field send signals to the earth station
which in turn transmits the same to the appointed satellite. From the
satellite, the picture is beamed back which can be viewed live by any person
who has a TV set and has appropriate access to receive footprints within the
beaming zone. In such case DD or the Ministry of Communications is not to
provide any assistance either in the form of equipments or personnel or for that
matter, in granting uplinking facility for televising the event.

64. It
is further that the right to disseminate information is a part of the
fundamental right to freedom of expression.

BCCI/CAB
have the fundamental right to televise the game of cricket organised and
conducted by them for the benefit of public at large and in particular citizens
of India who are either interested in cricket or desire to be educated and/or
entertained. The said right is subject only to the regulations and restrictions
as provided by Article 19(2) of the Constitution.

65.
65. At no other stage either the DD or 156 MIB stated that reasonable
restrictions as enumerated in Article 19 [2] arc being sought to be imposed
apart from the fact that such plea could not have been taken by them in the
case of telecasting sports events like cricket matches. It is urged that the
sole ground on which DD/MIB is seeking to obstruct and/or refuse the said
fundamental right is that the DD has the exclusive privilege and monopoly to
broadcast such an event and that unless the event is produced, transmitted and
telecast either by DD itself or in collaboration with it on its own terms and
conditions and after taking signal from it on the terms and conditions it may
impose, the event cannot be permitted to be produced, transmitted and telecast
at all by anybody else.

66. It
is also urged that there is no exclusive privilege or monopoly in relation to
production, transmission or tele- casting and such an exclusivity or monopoly,
if claimed , is violative of Article 19 [1] (a).

67 The
BCCI and CAB have a right under Article 19 [1] (a) to produce, transmit,
telecast and broadcast their event directly or through its agent. The right to
circulate information is a part of the right guaranteed under Article 19 [1]
(a). Even otherwise, the viewers and persons inter- ested in sports by way of
education, information, record and entertainment have a right to such
information, knowledge and entertainment. The content of the right under
Article 19 [1] (a) reaches out to protect the information of the viewers also.
In the present case, there is a right of the viewers and also the right of the
producer to telecast the event and in view of these two rights, there is an
obligation on the part of the Department of Telecom- munication to allow the
telecasting of the event.

68. It
is then contended that the grant of a licence under section 4 of the Act is a
regulatory measure and does not entitle MIB either to deny a license to BCCI/
CAB for the purposes of production, transmission and telecasting sports events
or to impose any condition unrelated to Article 19 [2]. If such denial or
imposition is made, it would amount to a prohibition. Hence the NM is obliged
and dutybound in law to grant licence against payment of fees related to and
calculated on the basis of user of time only, as has been standardized and not
otherwise. Any other method applied by MIB/DD would be violative of Article 19
[1] (a). The grant of license under section 4 of the Act has thus to be harmoniously
read with the right of the citizen under Article 19 [1] (a). The Constitution
does not visualize any monopoly in Article 19 [1] (a). Hence DD cannot claim
the same nor can the commercial interest of DD or claim of exclusivity by it of
generation of signals be a ground for declining permission under section 4 of
the Act. Hence the following restrictions sought to be imposed fall outside the
ambit of Article 19(2) and are unconstitutional. The restrictions are:

(a)
That unless BCCI or CAB televises the matches in collaboration with DD, a
license shall not be granted.

(b)
The DD alone will be the host broad- caster of the signals and BCCI/CAB or its
agency must take the signal from DD alone and

(c)
Unless the BCCI or CAB accepts 157 the terms and conditions imposed by DD, the
production of signal and transmission and telecast thereof shall not be
permitted.

69. It
is further contended that there is no monopoly in relation to what viewer must
today view and the American decisions relied upon on behalf of MIB have no
bearing on the present state of affairs. Satellite can beam directly on to
television sets through dish antenna, all programmes whose footprints are
receivable in the country. Further, any one can record a programme in India and then telecast it by sending the
cassette out as is being done in the case of several private TV channels.
Various foreign news orga- nizations such as the BBC and the CNN record
directly Indian events and then transmit their own signals after a while to be
telecast by their organizations.

70.
Further, the non-availability of channel is of no consequence in the present
days of technological development. Any person intending to telecast/broadcast
an event can do so directly even without routing signal through the channels of
DD or MIB. What is required to ensure is that the secured channel are not
interfered with or overlapped. On account of the availability of innumerable
satellites in the Geo-Stationary Orbit of the Hemisphere, the signals can
directly be uplinked through any of the available transponders of satellite
whose footprints can be received back through appropriate electronic device. As
a matter of fact, beaming zone of only 3 satellites parked 3000 Kms. above the
surface of the earth can cover the entire Hemisphere. Moreover, due to
technological developments, frequency is becoming thinner and thinner and as a
result, availability of frequencies has increased enormously and at present
there are millions of frequencies available. In order to ensure that none of the
footprints of any satellite overlaps the footprint of other satellite, each and
every satellite is parked at a different degree and angle. Hence, there is no
resource crunch or in-built restriction on the availability of electronic
media, as con- tended by MIB. In this connection it is also pointed out that
there is a difference in the right spelt out by Article 19 [1] (a) of our
Constitution and that spelt out by the First Amendment of the American
Constitution.

71. It
is also contended that in no other country the right to televise or broadcast
is in the exclusive domain of any particular body. In this connection, a
reference is made to various instances in other countries where the host
broadcaster has been other than the domestic network, which instances are not
controverted. It is also urged that there is no policy of the Government of
India as urged on behalf of the MIB that telecasting of sporting events would
be within the exclusive domain and purview of DD/MIB who alone would market
their rights to other authorities in whole or in part. It is pointed out that
the extract from the minutes of the meeting of the Committee of Secretaries
held on 12th November,
1993 relied upon by
the MIB for the purpose is not a proof of such policy. The said minutes are
'executive decision' of a few Secretaries of the various departments of the
Government.

72.It
is also urged that even public interest or interest of general public cannot be
a ground for refusal or for the imposition of restrictions or for claiming exclusivity
in any manner whatsoever.

158
Such restriction, if imposed will be violative of Article 19 [1] (a). To
suggest that power to grant a license shall not be exercised under any
circumstances because of the policy of the Government, is arbitrary inasmuch as
the power conferred is not being used for the purpose for which it has been
conferred.

73.It
is then contended that both BCCI and CAB are non- profit making organizations
and their sole object is to promote the game of cricket in this country and for
that purpose not only proper and adequate infrastructures are required to be
erected, built and maintained, but also huge expenses have to be incurred to
improve the game which includes, amongst others, grant of subsidies and grants
to the Member Associations, upgradation of infrastructure, training of
cricketeers from school level, payments to the cricketeers, insurance and
benevolent funds for the cricketeers, training of umpires, payments of foreign
participants, including guarantee money etc. The quantum of amount to be spent
for all these purposes has increased during the course of time. These expenses
are met from the amounts earned by the BCCI and CAB since they have no other
continuous source of income. The earnings of BCCI and CAB are basically from
arranging various tournaments, instadia advertisements and licence fee for
permitting telecast and censorship. At least 70 per cent of the income earned
through the advertisements and generated by the TV network while telecasting of
the matches, is paid to the organizer apart from the minimum guaranteed money
as is apparent from the various agreements entered by and between BCCI/CAB as
well as by DD with. other networks. The DD in effect desires to snatch away the
right of telecast for its own commercial interest through advertisement, and at
the same time also demand money from the organizers as and by way of production
fee.

74.Merely
because an organization may cam profit from an activity whose character is
predominantly covered under Article 19 [1] (a), it would not convert the
activity into one involving Article 19 [1] (g). The test of predominant
character of the activity has to be applied. It has also to be ascertained as
to who is the person who is utilizing the activity. If a businessman were to
put in an advertisement for simpliciter commercial activity, it may render the
activity, the one, covered by Article 19 [1] (g). But even newspapers or a film
telecast or sports event telecast will be protected by Article 19 [1] (a) and
will not become an activity under Article 19 [1] (g) merely because it earns
money from advertisements in the process. Similarly, if the cricket match is
telecast and profit is earned by the licensing of telecasting right and
receipts from advertisements, it will be an essential element for utilization
and fulfillment of its object. The said object cannot be achieved without such
revenue.

75.Rebutting
the argument that the Organisation of sports is an industry and, therefore,
monopoly under Article 19 [6] is permissible, it is pointed out that even if,
in matters relating to business and profession, the State can create monopoly
under Article 19 [6], it can still not infringe Article 19 [1] (a). While the
State may monopolise the textile industry, it cannot prohibit the publication
of books and articles on textiles.

76.It
is also contended that the exercise of right claimed in the present case is 159
by BCCI/CAB and its office bearers who are citizens of India. Merely because foreign equipment
and technical and personnel are used as collaborators to exercise the said
right more effectively, it does not dilute the content of Article 19 [1] (a)
nor does it become an exercise of right by a non-citizens. In this connection,
it is emphasised that the DD is also using Worldtel, a foreign agency. Most of
the newspapers in India are printed on machines imported
from abroad. A newspaper may also have a foreigner as its manager. However,
that does not take away the right of the newspaper under Article 19 [1] (a).
They are only instances of technical collaboration. Apart from it, every
citizen has a right to information as the same cannot be taken away on grounds
urged by the NEB.

77.It
will be apparent from the contentions advanced on behalf of MIB that their main
thrust is that the right claimed by the BCCI/CAB is not the right of freedom of
speech under Article 19 [1] (a), but a commercial right or the right to trade
under Article 19 [1] (g). The contention is based mainly on two grounds viz.,
there is no free speech element in the telecast of sports and secondly, the
primary object of the BCCI/CAB in seeking to telecast the cricket matches is
not to educate and entertain the viewer but to make money.

78.It
can hardly be denied that sport is an expression of self In an athletic Nor individual
event, the individual expresses himself through his individual feat. In a team
event such as cricket, football, hockey etc., there is both individual and
collective expression. It may be true that what is protected by Article 19 [1]
(a) is an expression of thought and feeling and not of the physical or
intellectual prowess or skill. It is also true that a person desiring to
telecast sports events when he is not himself a participant in the game, does
not seek to exercise his right of self expression. However, the right to
freedom of speech and expression also includes the right to educate, to inform
and to entertain and also the right to be educated, informed and entertained.
The former is the right of the telecaster and the latter that of the viewers.
The right to telecast sporting event will therefore also include the right to
edu- cate and inform the present and the prospective sportsmen interested in
the particular game and also to inform and entertain the lovers of the game.
Hence, when a telecaster desires to telecast a sporting event, it is incorrect
to say that the free speech element is absent from his right. The degree of the
element will depend upon the character of the telecaster who claims the right.
An organiser such as the BCCI or CAB in the present case which are indisputably
devoted to the promotion of the game of cricket, cannot be place in the same
scale as the business organisations whose only intention is to make as large a
profit as can be made by telecasting the game. Whereas it can be said that
there is hardly any free speech element in the right to telecast when it is
asserted by the latter, it will be a warped and cussed view to take when the
former claim the same right, and contend that in claiming the right to telecast
the cricket matches organised by them, they are asserting the right to make
business out of it. The sporting organisations such as BCCI/ CAB which are
interested in promoting the sport or sports are under an obligation to organise
the sports events and can legitimately be accused of failing in their 160 duty
to do so. The promotion of Sports also includes its popularization through all
legitimate means. For this purpose, they are duty bound to select the best
means and methods to reach the maximum number of listeners and viewers. Since
at present, radio and TV are the most efficacious methods, thanks to the
technological development, the sports organisations like BCCI/CAB will be
neglecting their duty in not exploring the said media and in not employing the
best means available to them to popularise the game. That while pursuing their
objective of popularising the sports by selecting the best available means of
doing so, they incidentally earn some revenue, will not convert either them
into commercial organisations or the right claimed by them to explore the said
means, into a commercial right or interest. It must further be remembered that
sporting organisations such as BCCI/CAB in the present case, have not been
established only to organise the sports events or to broadcast or telecast
them. The organisation of sporting events is only a part of their various
objects, as pointed out earlier and even when they organise the events, they
are primarily to educate the sportsmen, to promote and popularise the sports and
also to inform and entertain the viewers. The Organisation of such events
involves huge costs. Whatever surplus is left after defraying all the expenses,
is ploughed back by them in the Organisation itself It will be taking a
deliberately dis- torted view of the right claimed by such organisations to
telecast the sporting event to call it an assertion of a commercial right. Yet
the MIB has chosen to advance such contention which can only be described as
most unfortunate.

It is
needless to state that we are, in the circumstances, unable to accept the
ill-advised argument. It does no credit to the Ministry or to the Government as
a whole to denigrate the sporting organisations such as BCCI/CAB by placing
them on par with business organisations sponsoring sporting events for profit
and the access claimed by them to telecasting as assertion of commercial
interest.

79.The
second contention of NM is based upon the propositions laid down by the US
Supreme Court, viz., there are inherent limitations imposed on the right to
telecast/broadcast as there is scarcity of resources, i.e. of frequencies, and
therefore the need to use them in the interest of the largest number. There is
also a pervasive presence of electronic media such as TV. It has a greater
impact on the minds of the people of all ages and strata of the society
necessitating the prerequisite of licensing of the programmes. It is also
contended on that account that the licensing of frequencies and consequent
regulation of telecasting/broadcasting would not be a matter governed by
Article 19 [2]. Whereas Article 19 [2] applies to restric- tions imposed by the
State, the inherent limitations on the right to telecast/broadcast are imposed
by nature.

80.In
the first instance, it must be remembered that all the decisions of the US
Supreme Court relied upon in support of this contention, are on the right of
the private broadcasters to establish their own broadcasting stations by
claiming a share in or access to the airwaves or frequen- cies. In the United States, there is no Central Government-
owned or controlled broadcasting centre. There is only a Federal Commission to
regulate broadcasting stations which are all owned by private broadcasters.
Secondly, the American Con- 161 stitution does not explicitly state the
restrictions on the right of freedom of speech and expression as our
Constitution does. Hence, the decisions in question have done no more than
impliedly reading such restrictions. The decisions of the U.S. Supreme Court,
therefore, in the context of the right claimed by the private broadcasters are
irrelevant for our present purpose. In the present case, what is claimed is a
right to an access to telecasting specific events for a limited duration and
during limited hours of the day. There is no demand for owning or controlling a
frequency. Secondly, unlike in the cases in the US which came for consideration before the US Supreme Court, the right to
share in the frequency is not claimed without a license. Thirdly, the right to
use a frequency for a limited duration is not claimed by a business
Organisation to make profit and lastly and this is an important aspect of the
present case, to which no reply has been given by the MIB, there is no claim to
any frequency owned and controlled by the Government. What is claimed is a
permission to uplink the signal created by the organiser of the events to a
foreign satellite.

81.
There is no doubt that since the airwaves/frequencies are a public property and
are also limited, they have to be used in the best interest of the society and
this can be done either by a central authority by establishing its own
broadcasting network or regulating the grant of licences to other agencies,
including the private agencies. What is further, the electronic media is the
most powerful media both because of its audio-visual impact, and its widest
reach covering the section of the society where the print media does not reach.
The right to use the airwaves and the content of the programmes therefore,
needs regulation for balancing it and as well as to prevent monopoly of
informa- tion and views relayed, which is a potential danger flowing from the
concentration of the right to broadcast/telecast in the hands either of a
central agency or of few private affluent broadcasters. That is why the need to
have a central agency representative of all sections of the society free from control
both of the Government and the dominant influential sections of the society.
This is not disputed.

But to
contend that on that account the restrictions to be imposed on the right under
Article 19 [1] (a) should be in addition to those permissible under Article 19
[2] and dictated by the use of public resources in the best interests of the
society at large, is to misconceive both the content of the freedom of speech
and expression and the problems posed by the element of public property in, and
the alleged scarcity of, the frequencies as well as by the wider reach of the
media. If the right to freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as is possible,
the access which enables the right to be so exercised is also an integral part
of the said right. The wider range of circulation of information or its greater
impact cannot restrict the content of the right nor can it justify its denial.
The virtues of the electronic media cannot become its enemies. It may warrant a
greater regulation over licensing and control and vigilance on the content of
the programme telecast. However, this control can only be exercised within the
framework of Article 19 [2] and the dictates of public interests. To plead for
other grounds is to plead for unconstitutional measures. It is further
difficult to appreciate such contention on the 162 part of the Government in this
country when they have a complete control over the frequencies and the content
of the programme to be telecast. They control the sole agency of telecasting.
They are also armed with the provisions of Article 19 [2] and the powers of
pre-censorship under the Cinematograph Act and Rules. The only limitations on
the said right is, therefore, the limitation of resources and, the need to use
them for the benefit of all. When, however, there are surplus or unlimited
resources and the public interests so demand or in any case do not prevent
telecasting, the validity of the argument based on limitation of resources
disappears. It is true that to own a frequency for the purposes of broadcasting
is a costly affair and even when there are surplus or unlimited frequencies,
only the affluent few will own them and will be in a position to use it to
subserve their own interest by manipulating news and views. That also poses a
danger to the freedom of speech and expression of the have-nots by denying them
the truthful information on all sides of an issue which is so necessary to form
a sound view on any subject, That is why the doctrine of fairness which is
evolved in the U.S. in the context of the private broadcasters licensed to
share the limited frequencies with the central agency like the FCC to regulate
the programming.

But
this phenomenon occurs even in the case of the print media of all the
countries. Hence the body like the Press Council of India which is empowered to
enforce, however imperfectly, the right to reply. The print media further
enjoys as in our country, freedom from pre-censorship unlike the electronic
media.

82.As
-stated earlier, we are not concerned in the present case with the right of the
private broadcasters, but only with the limited right for telecasting
particular cricket matches for particular hours of the day and for a particular
period. It is not suggested that the said right is objectionable on any of the
grounds mentioned in Article 19 [2] or is against the proper use of the public
resources.

The
only objection taken against the refusal to grant the said right is that of the
limited resources. That objection is completely misplaced in the present case
since the claim is not made on any of the frequencies owned, controlled and
utilised by the D.D. The right claimed is for uplinking the signal generated by
the BCCI/CAB to a satellite owned by another agency. The objection, therefore,
is devoid of any merit and untenable in law. It also displays a deliberate
obdurate approach.

83.The
third contention advanced on behalf of the MIB is only an extended aspect of
the fist contention. It is based on the same distorted interpretation of the
right claimed.

It
proceeds on the footing that the BCCI/CAB is claiming a commercial right to
exploit the sporting event when they assert that they have a right to telecast
the event through an agency of their choice. It is even contended on behalf of
the MIB that this amounts to a device for a non-citizen to assert rights under
Article 19 [1] .(a) which are not available to him.

84.It
is unnecessary to repeat what we have stated while dealing with the first
contention earlier, with regard to the character of BCCI/CAB, the nature of and
the purpose for which the right to access to telecast is claimed by them.

As
pointed out, it is not possible to hold that what the BCCI/CAB are in the
present cast claiming is a commercial right to exploit the 163 event unless one
takes a perverse view of the matter. The extent of perversity is apparent from
the contention raised by them that to engage a foreign agency for the purpose
is to make it a device for a noncitizen to assert his rights under Article 19
[1] (a). It cannot be denied that the right to freedom of speech and expression
under Article 19 [1] (a) includes the right to disseminate information by the
best possible method through an agency of one's choice so long as the
engagement of such agency is not in contravention of Article 19 [2] of the
Constitution and does not amount to improper or unwarranted use of the frequencies.
Hence the choice of BCCI/ CAB of a foreign agency to telecast the matches,
cannot be objected to.

There
is no suggestion in the present case that the engagement of the foreign agency
by the BCCI/CAB is violative of the provisions of Article 19 [2]. On the other
hand, the case of NUB, as pointed out earlier, is that the BCCI/CAB want to
engage the foreign agency to maximise its revenue and hence they are not
exercising their right under Article 19 [1] (a) but their commercial right
under Article 19 [1] (g). We have pointed out that that argument is not
factually correct and what in fact the BCCI/CAB is asserting is a right under
Article 19 [1] (a). While asserting the said right, it is incidentally going to
earn some revenue.

In the
circumstances, it has the right to choose the best method to earn the maximum
revenue possible. In fact, it can be accused of negligence and may be
attributed improper motives, if it fails to explore the most profitable avenue
of telecasting the event, when in any case, in achieving the object of
promoting and popularising the sports, it has to endeavour to telecast the
cricket matches.

The
record shows that all applications were made and purported to have been made to
the various agencies on behalf of CAB for the necessary licences and
permissions.

All
other Ministries and Departments understood them as such and granted the
necessary permissions and licences. Hence, by granting such permission, the
Government was not in fact granting permission to the foreign agency to exercise
its right under Article 19 [1] (a). If, further, that was the only objection in
granting permission, a positive approach on the part of the NM could have made
it clear in the permission granted that it was being given to CAB. In fact,
when all other Government Departments had no difficulty in construing the
application to that effect and granting the necessary sanctions/permissions at
their end, it is difficult to understand the position taken by the MIB in that
behalf. One wishes that such a contention was not ad- vanced.

85.The
fourth contention is that, as held by the US Supreme Court, the freedom of
speech has to be viewed also as a right of the viewers which has a paramount
importance, and the said View has significance in a country like ours. To
safeguard the rights of the viewers in this country, it is necessary to
regulate and restrict the right to access to telecasting. There cannot be any
dispute with this proposition. We have in fact referred to this right of the
viewers in another context earlier. True democracy cannot exist unless all
citizens have a right to participate in the affairs of the polity of the
country. The right to participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the issues, in respect of
which they are called upon to express their views. One-sided information,
disinformation, misinformation and non-information all 164 equally create an
uninformed citizenry which makes democracy a farce when medium of information is
monopolised either by a partisan central authority or by private individuals or
oligarchic organisations. This is particularly so in a country like ours where
about 65 per cent of the population is illiterate and hardly 1-1/2 per cent of
the population has an access to the print media which is not subject to
precensorship. When, therefore, the electronic media is controlled by one
central agency or few private agencies of the rich, there is a need to have a
central agency, as stated earlier, representing all sections of the society.

Hence
to have a representative central agency to ensure the viewers' right to be
informed adequately and truthfully is a part of the right of the viewers under
Article 19 [1] (a).

We
are, however, unable to appreciate this contention in the present context since
the viewers' rights are not at all affected by the BCCI/CAB, by claiming a
right to telecast the cricket matches, On the other hand, the facts on record
show that their rights would very much be trampled if the cricket matches are
not telecast through the D.D., which has the monopoly of the national
telecasting network. Although, there is no statistical data available [and this
is not a deficiency felt only in this arena], it cannot be denied that a vast
section of the people in this country is interested in viewing the cricket
matches. The game of cricket is by far the most popular In all parts of the
country. This is evident from the over-flowing stadia at the venues wherever
the matches are played and they are played all over the country. It will not be
an exaggeration to say that at least one in three persons, if not more, is
interested in viewing the cricket matches. Almost all television sets are
switched on to view the matches. Those who do not have a T.V. set of their own,
crowd around T.V. sets of others when the matches are on. This is not to
mention the number of transistors and radios which are on during the
match-hours. In the face of these revealing facts, it is difficult to
understand why the present contention with regard to the viewers' right is
raised in this case when the grant of access to BCCI/CAB to telecast cricket
matches was in the interest of the viewers and would have also contributed to
promote their rights as well.

86.The
last argument on behalf of the MIB is that since in the present case, the DD
has not refused to telecast the event, its monopoly to telecast cannot be
challenged and in fact no such contention was raised by the BCCI/CAB. We are
afraid that this will not be a proper reading of the contentions raised by
BCCI/CAB in their pleadings both before the High Court and this Court.
Undisputed facts on record show that the DD claimed exclusive right to create
host broadcasting signal and to telecast it on the terms and conditions
stipulated by it or not at all. MIB even refused to grant uplinking facilities
when the terrestrial signal was being created by the CAB with their own
apparatus, i.e., the apparatus of the agency which they had engaged and when
the use of any of the frequencies owned, controlled or commanded by DD or the Government,
was not involved. Since BCCI/CAB were the organisers of the events, they had
every right to create terrestrial signals of their event and to sell it to
whomsoever they thought best so long as such creation of the signal and the
sale thereof was not violative of any law made under Article 19 [2] and was not
an abuse of the frequencies which are a public property.

Neither
DD nor any other agency could im- 165 pose their terms for creating signal or
for telecasting them unless it was sought through their frequencies. When the
DD refused to telecast cricket matches except on their terms, the BCCI/CAB
turned to another agency, in the present case a foreign agency, for creating
the terrestrial signal and telecasting it through the frequencies belonging to
that agency. When the DD refused to telecast the matches, the rights of the
viewers to view the matches were in jeopardy.

Only
the viewers in this country who could receive foreign frequencies on their TV
sets, could have viewed the said matches. Hence it is not correct to say that
the DD had not refused to telecast the events. To insist on telecasting events
only on one's unreasonable terms and conditions and not otherwise when one has
the monopoly of telecasting, is nothing but refusal to telecast the same. The
DD could not do it except for reasons of non-availability of frequencies or for
grounds available under Article 19(2) of the Constitution or for considerations
of public interest in- volved in the use of the frequencies as public property.

The
fact that the DD was prepared to telecast the events only on its terms shows
that the frequency was available.

Hence,
scarcity of frequencies or public interests cannot be pressed as grounds for
refusing to telecast or denying access to BCCl/CAB to telecasting. Nor can the
DD plead encroachment on the right of viewers as a ground since the telecasting
of events on the terms of the DD cannot alone be said to safeguard the right of
viewers in such a case and in fact it was not so.

87.Coming
to the facts of the present case, which have given rise to the present
proceedings, the version of MIB is as follows:

On
March 15, 1993, the CAB wrote a letter to the Director General of Doordarshan
that a Six-Nation International Cricket Tournament will be held in November,
1993 as a part of its Diamond Jubilee Celebrations and asked DD to send a
detailed offer for any of the two alternatives, namely,

(i) that
DD would create 'Host Broadcaster Signal' and also undertake live telecast of
all the matches in the tournament or

(ii) any
other party may create the 'Host Broadcaster Signal' and DD would only purchase
the rights to telecast in India. CAB in
particular emphasised that in either case, the foreign T.V. rights would be
with CAB. The CAB also asked DD to indicate the royalty amount that would be
paid by the DD. On March 18, 1993 the Controller of Programmes (Sports), DD,
replied to the letter stating amongst other things that during the meeting and
during the telephonic conversation, CAB's President Dalmia had agreed to send
them in writing the amount that he expected as rights fee payable to CAB
exclusively for India, without the Star TV getting it. On March 19, 1993, CAB
informed DD that they would be agreeable to DD creating the Host Broadcaster
Signal and also granting DD exclusive right for India without the Star TV
getting it and the CAB would charge DD US $800,000 (US Dollars eight lakh]
only] for the same. The CAB, however, made it clear that they would reserve the
right to sell/li- cense the right world-wide, excluding India and Star TV.

The
CAB also stated that DD would be under an obligation to provide a picture and
commentary subject to payment of DD's technical fees. On March 31, 1993, DD sent its bid as 'Host Broadcaster'
for a sum of Rs. 1 crore stating inter alia, that CAB should grant signals to
it exclusively for India with- 166 out the Star TV getting
it. The DD also stated that they would be in a position to create the 'Host
Broadcaster Signal' and offer a live telecast of all the matches in the
tournament. Thereafter, on May 4, 1993,
the DD by a fax message reminded the President of CAB about its offer of March 31, 1993. To that CAB replied on May 12,
1993 that as the Committee of CAB had decided to sell/allot worldwide TV rights
to one party only, they would like to know whether DD would be interested in
the deal and, if so, to send their offer for worldwide TV rights latest by May
17, 1993, on the following basis, namely, outright purchase of TV rights and sharing
of rights fee. On May
14, 1993 DD by its fax
addressed to CAB stated that it was committed to its earlier bid of Rs. 1
crore, namely, exclusive TV right in India alone. The DD also stated that as there was a speculation that Pakistan
may not participate in the tournament, which may affect viewership and
consequent commercial accruals, DD would have to rethink on the said bid also,
in such an even- tuality and requested CAB to reply to the said letter at the
earliest.

88. On
June 14, 1993, according to the NUB, without obtaining the required clearances
from the Government for telecasting, the CAB entered into an agreement with the
World Production Establishment (W/PE) representing the interests of TWI [Trans
World International], for telecasting all the matches. The said agreement
provided for the grant of sole and exclusive right to sell/licence or otherwise
exploit throughout the world 'Exhibition Rights' in the tournament. CAB shall
only retain radio rights for the territory of India. The CAB under the agreement was to
receive not less than US $550,000 as guaranteed sum. If any income from the
rights fee is received in excess of the guaranteed sum, it was to be retained
wholly by WPE until it was eventually split into 70:30 per cent as per the agree-
ment. If the rights fee/income received was less than guaranteed sum, WPE was
to pay the difference to CAB. The WPE was to pay, where possible, television
license fee in advance of the start of the tournament.

89. On
June 18, 1993, DD sent a fax to CAB stating therein that from the press
reports, it had learnt that CAB had en- tered into an agreement with TWI for
the TV coverage of the tournament, and the DD had decided not to telecast the
matches of the tournament by paying TWI, and that DD was not prepared to enter
into any negotiations with TWI to obtain the television rights for the event.
On June 30, 1993, DD also informed similarly to
International Management Group, Hong Kong.

90. On
September 2, 1993, the Department of Youth Affairs
and Sports, Ministry of Human Resources Development, addressed a letter to the
CAB informing it that the Government had no objection to the proposed visit of
the Cricket Teams of Pakistan, South Africa, Sri Lanka, West Indies and Zimbabwe, to India for participation in the tournament. The Department further
stated that no foreign national shall visit any restricted/protected/prohibited
area of India without permission from the
Ministry of Home Affairs. It was also clarified that the sanction of foreign
exchange was subject to the condition that CAB would utilize only the minimum
foreign exchange required for the purpose and shall deposit foreign exchange
obtained by 167 it by way of fee, sponsorship, advertisements, broadcasting
rights, etc. through normal banking channels under intima- tion to the Reserve
Bank of India. On September 17, 1993 on the application of CAB made on
September 7, 1993, VSNL ad- vised CAB to approach the respective Ministries and
the Telecom Commission for approval (a) regarding import of earth station and
transmission equipment and (b) for frequency clearance from Telecom Commission.
The satellite to be used for the transmission coverage, was also required to be
specified. It was further stated that CAB should approach VSNL for uplinking
signal to INTELSAT at Wash- ington. The TWI was advised to
apply VSNL for necessary coordination channels and DD phone facility covering
each location. On October
9, 1993, TWI wrote to
VSNL seeking frequency clearance from the Ministry of Communications.

The
TWI informed VSNL that they will be covering the tournament and that they were
formally applying for its per- mission to uplink their signal as per the list
attached to the letter. They also sought frequency clearance for the
walkie-talkie .On October 13, 1993, the Ministry of Home Affairs informed the
CAB that the Ministry had 'no objection' to the filming of the cricket matches
at any of the places mentioned in the CAB's letter and that the 'no objection'
pertains to the filming of the matches on the cricket grounds only. The
Ministry also gave its 'no objec- tion' to the use of walkie-talkie sets in the
play grounds during the matches subject to the permission to be obtained from
WPC.

91.On
October 18, 1993, the CAB addressed a letter to DD for telecasting rights for
telecasting matches mentioning its earlier offer of rights for telecasting and
pointed out that the offer of Rs.10 million made by DD vide its fax message
dated March 31, 1993 and on the condition the CAB should not grant any right to
Star TV was uneconomical, and considering the enormous organizational cost,
they were looking for a minimum offer of Rs.20 million. The CAB also pointed
out that the offers received by them from abroad including from TWI, were much
higher than Rs.20 million and that the payment under the offers would be made
in foreign exchange.

The
CAB also stated that they were given to understand that DD was not interested
in increasing their offer and hence they entered into a contract with TWI for
telecasting the matches. However, they were still keen that DD should come
forward to telecast the matches since otherwise people in India would be deprived of viewing the
same. Hence they had made TWI agree to co-production with DD and they also
prayed the DD for such co-production. The CAB's letter further stated that
during a joint meeting the details were worked out including the supply of
equipment list by the respective parties, and it was decided in principle to go
for a joint production. The CAB stated that it was also agreed that DD would
not claim exclusive right and CAB would be at liberty to sell the rights to
Star TV. Thereafter CAB learnt from newspaper reports that DD had decided not
to telecast the matches. Hence they had written a letter to DD dated September 15, 1993 to confirm the authenticity of such
news, but they had not received any reply from DD. It was pointed that in the
meanwhile they had been repeatedly approached by Star TV, Sky TV and other
network to telecast matches to the Indian audience and some of them on an
exclusive basis.

But
they 168 had not taken a decision on their offers, since they did not want to
deprive DD's viewers. It was further recorded that the CAB had also learnt
recently that DD would be interested in acquiring the rights of telecast
provided it was allowed to produce the matches directly, and the matches
produced by TWI were made available to it live, without payment of any
technical fees. After recording this, the CAB made fresh set of proposals, the
gist of which was as follows:

1. TWI
and Doordarshan would cover 9 (nine) matches each in the tournament
independently, which are as follows:

2. TWI
will do the coverage of thesematches with their own equipment, crew and
commentators. Similarly, Doordarshan will also have their own crew, equipment
and commentators for the matches produced by them.

3.
Doordarshan will be at liberty to use their own commentators for matches
produced by TWI for telecast in India. Similarly, TWI may also use their own commentators if they televised
matches produced by Doordarshan in other networks.

4. TWI
will allow Doordarshan to pick up the Signal and telecast live within India, free of charges. Similarly,
Doordarshan will allow TWI to have the Signal for live/recorded/highlights
telecast abroad, free of charges.

The
CAB will be at liberty to sell such time slot to the advertisers and the
proceeds so received will belong to CAB.

6.
Contract will be entered upon by the CAB and Doordarshan directly for the above
arrangements. TWI will give a written undergoing for the coverage breakup as
mentioned in point 1.

7.
Score Card and Graphics shall be arranged by CAB and the expenses for such
production or income derived from sponsorship shall be on the account of CAB.
Both TWI and Doordarshan will use such Score Cards and Graphics as arranged by
CAB.

92.
The CAB requested the DD to communicate their final decision in the matter
before October 21, 1993.

93. On
October 26, 1993 VSNL sent a communication to
INTESLSAT at Washinton seeking information of uplinking timings for TV
transmission asked for by CAB/TWI. On October 27, 1993 the Tele- 169
communications Department sent a letter to the Central Board of Excise and
Customs on the question of temporarily im- porting electronic production
equipment required for transmission of one-day matches of the tournament and
conveying ' no objection' of the Ministry of Communications to the proposal,
subject to the organizers coordinating with WTC (DoT) for frequency clearance,
from the "Standing Advisory Committee on Frequency Allocation
(SACFA)", for TV up-linking from different places and coordinating with
VSNL, Bombay for booking TV transponders.

94. On
October 27, 1993, DD informed CAB with reference to
its renewed offer of October
18, 1993 that the
terms and conditions of the offer were not acceptable to it and that they have
already intimated to them that DD will not take signal from TWI - a foreign
Organisation. They also made it clear that they had not agreed to any joint
production with TWI. On October
29, 1993, CAB replied
to DD that they were surprised at the outright rejection of the various
alternative proposals they had submitted. They had pointed out that the only
reason given for rejection was that DD will not take signals from TWI, which
was a foreign organi- zation. Since they had also suggested production of live
matches by DD the question of taking signal from TWI did not arise. CAB further
stated that purely in deference to DD's sensitivity about taking signal from
TWI, CAB would be quite happy to allow DD to produce its own picture of matches
and DD may like to buy rights and licenses from CAB at 'a price which will be
mutually agreed upon, and that these rights would be on nonexclusive basis on
Indian territory. On October
30, 1993, DD sent a
message to CAB stating that DD will not pay access fee to CAB to telecast the
matches.

However,
for DD to telecast the matches live, CAB has to pay technical charges/
production fee at Rs.5 lakh per match.

In
that case DD will have exclusive rights for the signal generated and the
parties interested to take the signal will have to negotiate directly with the
DD. On October 31, 1993 DD sent a fax message to CAB to the
same effect.

95. On
November 1, 1993 VSNL deputed its engineers/staff to
be at the venues where the matches were being played to coordinate with TWI for
TV coverage. On November
2, 1993, TWI paid US
$29,640 and [Pounds] 121,400 to VSNL as fees for INTELSAT charges. On the same
day, the Finance Ministry permitted the equipment of TWI to be imported on
certain conditions by waiving the customs and additional duties of customs. On November 4, 1993, CAB addressed a letter to DD
referring to DD's fax message of October 31, 1993 asking for certain clarification on
the offer made by DD. In this letter, CAB stated that since, DD had asked for
fees for production and telecast of matches, it was presumed that all revenue
generated from the matches or entire timeslot for advertisements, would belong
to CAB and that they shall have the right to charge access fees including other
charges from parties abroad, and DD would telecast those matches for which CAB
will pay the charges. The choice of the matches to be telecast by DD would be
determined by CAB. On No- vember 5, 1993, the DD rejected the terms.

96. On
November 8, 1993, CAB filed 170 a writ petition in the Calcutta High Court
praying, among others, that the respondents should be directed to provide
telecast and broadcast of all the matches and also provide all arrangements and
facilities for telecasting and broadcasting of the matches by the agency
appointed by the CAB, VI_., TWI. Interim reliefs were also sought in the said
petition. On the same day, the High Court directed the learned advocate of the
Union of India to obtain instruc- tions in the matter and in the meanwhile. passed
the interim orders making it clear that they would not prevent DD from
telecasting any match without affecting the existing arrangements between CAB
and TWI. The writ petition was posted for further hearing on November 9, 1993
on which day, the learned Single Judge confirmed the interim orders passed on November
8, 1993 and respondents were restrained from interfering with the frequency
lines given to respondents NO.10 [TWI]. On 10th November, 1993, VSNL advised
INTELSAT at Washington seeking cancellation of its request for book- ing. On
November 11, 1993, the learned Judge partly allowed the writ by directing All
India Radio to broadcast matches.

On
November 12, 1993 in the appeal filed by the Union of India against the
aforesaid orders of the Division Bench, the High Court passed interim order to
the following effect:

(a)that
CAB would pay DD a sum of Rs.5 lakh per match and the revenue collected by DD
on account of sponsorship will be kept in separate account.

(b)that
DD would be the host broadcaster.

(c)that
Ministry of Telecommunication would consider the question of issuing a license
to TWI under the Telegraphs Act and decide the same within three days.

97. On
November 12, 1993, the Film Facilities Officer of the MIB informed the Customs
Department at New Delhi, Bombay and Calcutta airports, that as TWI had not
obtained required clearances from the Government for the coverage of the
tournament, they should not be permitted to remove exposed film outside India
till it was cleared by the Government.

On the
same day, DD asked the CAB providing various facilities at each match venue as
this was pre-requisite for creating host broadcaster signal in India. CAB sent
a reply on the same day and called upon the DD to telecast matches within India
pursuant to the High Court's order. On the same day again the Collector of
Customs, Bombay called upon CAB to pay customs duty on the equipment as there
was a breach in the terms of the, exemption order.

98. On
the same day, i.e., November 1993, again the Committee of Secretaries decided
that the telecast of all sporting events would be within the exclusive purview
of the DD/MIB. It was also decided that for the purposes of obtaining necessary
clearances for telecasting different types of events for the country, a Single
Window service would be followed where the concerned Administrative Min- istry
would be the 'Nodal' Ministry to which' the application will be submitted and
it would thereafter be the function of the 'Nodal' Ministry to obtain
permissions from the concerned Ministry/Agencies.

99. On
14th November, 1993, the High Court in clarification of its order of No- 171
vember 12, 1993 directed, among others, as follows:

[a] In
case the signal is required to be generated by TWI separately, such necessary
permission should be given by DD and/or other competent authorities. .

[b]
The differences with regard to the placement of cameras etc., if any, between
cricket authority and DD should be mutually worked out, and if this cannot be
done, the dispute should be decided by the Head of the Police in the place
where the match was being played.

[c]
The equipment of TWI which had been seized by the Customs Authority should be
released upon undertaking that the same would not be used for any. other
purpose and [d] The VSNL should take proper steps for uplinking, and should not
take any steps to defeat the orders of the Court.

The
TWI should comply with all financial commitments to VSNL. 100. On November 15, 1993, the CAB and another filed the
present Writ Petition No. 836 of 1993. On November 15. 1993, this Court passed an
order directing the Secretary Ministry of Communications to hold meeting on the
same day by 4.30 P.M. and communicate his decision by 7.30 P.M. The Customs Authorities were directed to release the
equipments.

On the
same day at night another order was passed partly staying the orders of the
Chairman, Telecommunications and Secretary, Dot. TWI was permitted to generate
its own signals and Customs Authorities were directed to release the goods
forthwith.

101. ,
The DD filed Contempt Petition in the High Court on the same day against CAB
and another, for noncompliance with the orders of the High Court. The DD also
filed the present Special Leave Petitions in this Court on the same day.

102.
What emerges from the above correspondence is as follows. The CAB as early as
on 15th March, 1993, had offered to the DD two alternatives, viz., either the
DD would create host broadcaster signal and undertake live telecast of all the
matches in the tournament or any other party may create the host broadcaster
signal and DD would purchase from the said party the rights to telecast the
said signal in India. The CAB made it clear that in either case, the foreign TV
rights would remain with it. The CAB also asked the DD to indicate the royalty
that it will be willing to pay in either case. To that, on 18th March, 1993,
the DD rejoined by asking in turn the amount of royalty that the CAB expected
if the rights were given to it exclusively for India without the. Star TV
getting it. On 19th March, 1993, the CAB informed the DD that they would charge
US $8 lakhs for giving the DD the right to create the host broadcaster signal
and also for granting it exclusive right for India without the Star TV getting
it It was however, emphasised that the CAB would reserve the right to sell/license
the right of broadcasting worldwide excluding India and the Star TV. The CAB
also stated that the DD would be under an obligation to provide a picture and
commentary subject to payment of DD's technical fees. On 31st March, 1993, the
DD sent its bid as host broadcaster for a sum of Rs.1 crore [i.e.. about US
$3.33 lakhs at the then exchange rate]. Obviously, this was less than 50 per
cent of the royalty which was demanded by the CAB. The 172 CAB was, therefore,
justified in looking for other alternatives and that is what they did before
the DD by a fax message of 4th May, 1993 reminded the CAB about DD's offer of
Rs. 1 crore [i.e., US $3.33 lakhs]. To that message, the CAB replied on 12th
May, 1993 that it had decided to sell/allot worldwide TV rights to only one
party and, therefore, they would like to know whether the DD would be
interested in the said deal and if so, to send their offer for worldwide TV
rights, latest by 17th May, 1993. To this, on 14th May, 1993, the DD by Fax,
replied that it was interested only in exclusive TV rights for India alone
without the Star TV getting it and that it stood by its earlier offer of Rs. 1
crore [i.e., US $3.33 lakhs]. The DD went further and stated that as there was
a speculation that-Pakistan might not participate in the tournament which
eventuality was likely to affect viewership and commercial accruals, it will
have to rethink on that bid also meaning thereby that even the offer of Rs. 1
crore may be reduced.

103.
According to the MIB, the CAB, thereafter, entered into an agreement with World
Production Establishment representing the interests of TWI for telecasting all
the matches without obtaining clearance from the Government for telecasting,
and granted TWI sole and exclusive right to sell or otherwise exploit all
exhibition rights of the tournament. Under the agreement with TWI, the CAB was
to receive US $ 5.50 lakhs as guaranteed sum and in addition, if any rights fee
income was received in excess of the guaranteed sum, it was to be. split in the
ratio of 70:30 between the parties, i.e. 70 per cent to the CAB and 30 per cent
to TWI. Learning of this, the DD informed the CAB that it had decided not to
telecast the matches of the tournament by paying TWI TV rights fee and that it
was not prepared to enter into any negotiations with TWI for the purpose.

104.
Again on 18th October, 1993, CAB addressed a letter to DD for telecasting the
matches mentioning its earlier offer of rights for telecasting and pointed out
that the offer of Rs. 1 crore made by DI) on the condition that the CAB should
not grant any right 'to Star TV was uneconomical. CAB also pointed out that
considering the enormous organisational costs involved, they were looking for a
minimum offer of Rs.20 million.In this connection, they pointed out that the
offers received by them from abroad-including from TWI were much higher than
Rs.20 million and under those offers, the payment was also to be received in
foreign exchange. The CAB further stated in that letter that they were given to
understand that DD was not interested in increasing their offer and hence they
entered into a contract with TWI for telecasting the matches. Yet, they were
keen that DD should telecast the matches since otherwise people in India would
be deprived of viewing the same. They had, therefore, made the TWI agree for
co-production with DD. They, therefore, requested the DD to agree to such
co-production. The CAB also stated in the said letter that in fact in a joint
meeting, details of such arrangement were worked out including the supply of
equipment list by the respective parties and it was decided in principle to go
in for joint production. In the meeting, it was further agreed that DD would
not claim exclusive rights and the CAB would be at liberty to sell the rights to
Star TV. However, since subsequently they had learnt from newspaper reports
that DD had decided not to telecast the matches, by their 173 letter of 15th
September, 1993 they had asked DD to confirm the authenticity of the news
items. The DD, however, had not responded to the said letter. In the meanwhile,
many other networks had repeatedly approached them for telecasting matches to
the Indian audience and some of them on exclusive basis. But they had still
kept the matter pending since they did not want to deprive the viewers of the
DD of the matches. They further added that they had also learnt that DD would
be interested in acquiring rights of telecast provided it was allowed to
produce some matches directly and the matches produced by TWI are made available
to it live without payment of any technical fee. The CAB, therefore, in the
circumstances, suggested a fresh set of proposals for DD's consideration and
requested response be- fore 21st October, 1993. On 27th October, 1993, DD
responded to the said letter in the negative and stated that the offer made was
not acceptable to it and they had already communicated to that effect earlier,
stating that they will not take any signal from TWI. DD further denied that
they had agreed to any joint production with TWI. The CAB by its letter of 29th
October, 1993 pointed out, in response to this letter, that since they had also
suggested production of live matches by DD, question of taking signals from TWI
did not arise, and in deference to DD's sensitivity about taking signals from
TWI, CAB would be quite happy to allow DD to produce its own picture of matches
and DD may buy rights and licences from it at a price which will be mutually
agreed upon.

105.
Thus, the controversy between the parties was with regard to the terms for the
telecasting of the matches. It must be noted in this connection that the DD had
never stated to the CAB that it had no frequency to spare for telecasting the
matches. On the other hand, if the CAB had accepted the terms of the DD, DD was
ready to telecast the matches. Therefore, the argument based on resource crunch
as advanced on behalf of the MIB/ DD, is meaningless in the present case.

106.
All that we have to examine in the present case is whether the MIB/DD had
stipulated unreasonable conditions for telecasting the matches. It is apparent
from the above correspondence between the parties that CAB wanted a minimum of
U.S. $8 lakhs, i.e., Rs.2.40 crores. However, DD insisted that it would be the
host broadcaster and will have exclusive telecasting rights for India and for
these rights.

it
will pay only Rs. 1 crore. i.e. US $3.33 lakhs. It had also threatened to
reduce the said offer of Rs. one crore because Pakistan was not likely to
participate in the tournament. When it was pointed out by the CAB that this
offer was uneconomical taking. into consideration the enormous costs involved
and that they were looking for a minimum of Rs. 2 crores and had received
higher offers from other parties under which the payments will also be made in
foreign exchange, DD stuck to its earlier offer and refused to raise it. In the
meanwhile, the CAB received an offer of U.S. $5.50 lakhs, i.e., Rs. 1.65 crores
from TWI as guaranteed sum plus a share to the extent of 70 per cent in the
rights income fee. The CAB being the sole organiser of the event had every
right to explore the maximum revenue possible and there was nothing wrong or
improper in their negotiating with TWI the terms and conditions of the deal.

However,
the only response of DD to these arrangements which were being worked out
between the CAB and 174 TWI was that it would not telecast the matches of the
tournament by paying TWI the fees for purchasing the rights from that
Organisation. Even then the CAB did not shut its doors on DD, and by its letter
of 18th October, 1993 informed the DD that it was keen that DD should telecast
the matches so that people in India are not deprived of viewing the matches.
They also informed the DD that it was with this purpose that they had made TWI
agree for co-production with the DD and had made a fresh set of proposals.
However, these proposals were on materially different terms. To this, the DD
replied by its letters of 27th October, 1993 that the terms and conditions of
the offer were not ac- ceptable to it. The CAB by its letter of 29th October,
1993 again offered the DD that if their only objection was to taking signals
from TWI, since they had suggested production of live matches by DD in their
fresh proposals, there was no question of taking signals from TWI and they
should reconsider the proposals. To this, the only reply of the DD was that
they will not pay any Access Fee to CAB to telecast the matches and if DD were
to telecast the matches, the CAB will have to pay Technical/Production Fee at
the rate of Rs.5 lakhs per match, and in that case the DD will have exclusive
rights for the signal generated, and the parties interested will have to take
the signals from the DD after negotiating directly with it. In other words, the
DD took the stand that not only it will not pay any charges to the CAB for the
rights of telecasting the matches, but it is CAB which will have to pay the
charges, and that the DD will be the sole producer of signals and others will
have to buy the signals from it..

107.
Thus the correspondence between the parties shows that each of the parties was
trying to score over the other by taking advantage of its position.

The
blame for the collapse of the negotiations has to be shared by both. The
difference, if any, was only in the degree of unreasonableness. If anything,
this episode once again emphasises the need to rescue the electronic media from
the government monopoly and bureaucratic control and to have an independent
authority to manage and control it.

108.
Coming now to the change in the, stand of the other Departments of the
Government for granting facilities to the agency engaged by the CAB, the facts
make a revealing reading. The actions of the various Departments of the
Government, referred to earlier, show firstly, that the Min- istries of Human
Resources Development, of Home Affairs, of Finance, of Communications, and the
VSNL had no objection whatsoever to the arrangements which the CAB had entered
into with TWI, the foreign agency, for covering the cricket matches. In fact
they granted all the necessary permissions and facilities to the CAB/TWI in all
respects subject to certain conditions with which neither the CAB nor TWI had
any quarrel. Secondly, these various Departments had accepted TWI as the agency
of CAB for the purposes of the said coverage and they had no objection to the
TWI covering the matches on the ground that it was a foreign agency.

This
was the situation till the writ petition was filed by the CAB in the Calcutta
High Court on 8th November, 1993.

It is
necessary to remember in this connection that the decision or the DD to
intimate CAB that it will not pay even access fee to the CAB to telecast the
tournament and that it was for the CAB to pay the technical/pro- 175 duction
fee of Rs. 5 lakhs per match with DD having exclusive right for the signal
generated, and others will have to buy it after negotiating directly with the
DD, was taken on 30th/31st October, 1993. It is in that context that further
developments which are relevant for our purpose and which took place during the
pendency of the Court proceedings, have to be viewed. It is only on 12th
November, 1993 that the Committee of Secretaries came out with the concept of the
! nodal ministry. By itself, the decision to form the nodal ministry to
coordinate the activities of all the concerned ministries and departments is
unexceptional. But the time of taking the decision and its background was not
without its significance. However, there is no adequate material on record to
establish a nexus between the MIB/DD and the aforesaid actions of the other
authorities.

109.
The nexus in question was sought to be established by the CAB by pointing out
to the letter addressed by the Deputy Secretary in MIB with the approval of the
Secretary, of that Ministry to Department of Youth Affairs and Sports of the
Ministry of Human Resources Development. It in terms refers to the meeting of
the committee of Secretaries on 12th November, 1993 and states that according
to the so- called "extant policy" of the Government, as endorsed by
the Committee of Secretaries, the telecasting of sporting events is within the
exclusive purview of DD/MIB. Accordingly, the NIB opposes the grant of any
permission to M/s. WPE or its agency TWI or any Indian company to cover the
matches for general reception in India through up linking facility except in
collaboration with DD with only the latter being the sole agency entrusted with
the task of generating TV signal from the venue of the matches. It further
states that the MIB opposes

[i] import
of any satellite earth station for the coverage of the series,

[ii]
the grant of any ad-hoc exemption for the import of equipment by WTE or TWI
without their first producing the approval of the competent authority
permitting its use within India, in terms of the provisions of Indian Telegraph
Act, 1885 and the Wireless Telegraph Act, 1933 in the absence of which
possession of such equipment within India constitutes an offence,

[iii]
M/s. WTE or TWI being permitted to undertake shooting of the cricket matches at
different places and grant of visa or RAP to its personnel for visiting India,
and

[iv] the
grant of any permission to any aircraft leased by M/s. WPE/TWI for landing at
any international or national airport.

110.
It was urged that the question of the absence of permission/licence of the
requisite authorities under the Indian Telegraph Act and the Wireless Telegraph
Act was never raised or made a ground for denial of the right to the BCCI/CAB
to telecast the matches or to uplink the signal through TWI till after CAB had
approached the Calcutta High Court on 8th November, 1993. It was contended that the MIB woke
up suddenly to the relevant provisions of the statute after the Court
proceedings. We are, however, not satisfied that these events conclusively establish
that the other Departments acted at the behest of the DD/MIB.

111.
The circumstances in which the High Court case to pass its interim order dated 12th November, 1993 may now be noticed. The MIB and
DD's appeals are directed against the said order 'and writ petition is filed by
the CAB for direction to respondent Nos. 1 to 9, which include, 176 among
others, Union of India.

112.
In the writ petition filed by the CAB before the High Court on 8th November,
1993, the learned Single Judge on the same day passed an order of interim
injunction commanding the respondents to provide all adequate facilities and
cooperation to the petitioner and/or their appointed agency for free and
uninterrupted telecasting and broadcasting of the cricket matches in question
to be played between 10th and 20th November, 1993, and restrained the re-
spondents from tampering with, removing, seizing or dealing with any equipment
relating to transmission, telecasting or broadcasting of the said matches,
belonging to the CAB and their appointed agency, in any manner whatsoever. On
the next day, i.e., 9th
November, 1993 the
said interim order was made final. On the 11th November, 1993, on the application of the CAB
complaining that the equipment brought by their agency, viz., TWI [respondent
No. IO to the petition] were seized by the Bombay Customs authorities under the
direction issued by the Ministry of Communications and the MIB, another order
was passed by the learned Judge directing all Government authorities including
Customs authorities to act in terms of the interim orders passed earlier on
8th/9th November, 1993. While passing this order in the presence of the learned
counsel for the respondents who pleaded ignorance about the seizure of the
equipment by the Customs authorities, the learned Single Judge observed, among
other things, as follows:

"It
is submitted by the learned Counsel on behalf of the respondent that since
Doordarshan has been denied telecasting of the tournament by the respondent No.
6, Akasliban has also decided to stop broad- casting and in support of his
contention has produced a letter dated 10th of November, 1993 issued by the
Station Director, Calcutta, for Director General, All India Radio to Shri S.K.
Kundu, Central Government's Advocate whereupon it appears that it was admitted,
that All India Radio had planned to provide running commentary of the matches
of the above tournament organised by the Cricket Association of Bengal, but as
Doordarshan was denied the facility of nominating the Host Broadcaster's Signal
and it consequently decided not to cover those matches, All India Radio also
had decided to drop the coverage of those matches since the principles on which
Doordarshan based its decision, viz.,, the protection of inherent interest of
the National Broad- casters to generate the signal of sports, applied equally
to the All India Radio.

I fail
to understand the logic behind the said letter and the stand taken by the All
India Radio in the matter which appears to me wholly illogical and ridiculous,
Doordarshan might have some dispute with the.... regarding the right to be the
Host Broadcasters Signal including financial questions, but the All India
Radio, which itself volunteered to broadcast the matches themselves, and when,
admittedly, no financial transaction is involved between the All India Radio
and the respondent No.6, denial of the All India Radio to broadcast the said
matches only on the ground that since Doordarshan was denied by the respondent
No.6 to be 1 the Host Broadcaster's Signal, the All India Radio stopped
broadcasting the matches following the same principle, ap- pears to be
absolutely whimsical and capricious.

x x x
x x x Such denial by the All India Radio certainly is an act done against the
public interest and thus cannot be supported and/ 177 or upheld to deprive the
general people of India of such small satisfaction...

x x x
x x x Accordingly, I find the action of the All India Radio in stopping the
broadcasting of aforesaid tournament is wholly illegal, arbitrary and mala fide....

This
writ application accordingly succeeds and allowed to the extent as stated
above, and let a writ in the nature of mandamus to the extent indicated above
be issued." 113. The Union of India preferred an appeal against the said
decision and in the appeal moved an application for staying the operation of
the orders passed by the learned Single Judge on 8th/9th November, 1993.
Dealing with the said application, the Division Bench in its order dated other
things, as follows:

"Mr.
R.N. Das, learned Counsel appearing for and on behalf of the Union of India and
others including the Director General of Doordarshan, appearing with Mr. B.
Bhattacharya and Mr. Prodosh Mallick submitted inter alia, that the Doordarshan
authority is very much inclined and keen to telecast the Hero Cup matches in
which several parties from abroad are participating including India. But it was
pointed out that the difficulties have been created by Cricket Association of
Bengal in entering into an agreement with Trans World International [UK] Inc. World Production the respondent No.10 of the
writ petition wherein the Cricket Association of Bengal has given exclusive
rights to telecast to that authority. It was submitted by Mr. Das that under
Section 4 of the Indian Telegraph Act, 1885 the Central Government have the
exclusive privilege of establishing, maintaining and working telegraph and that
it was further submitted that the expression telegraph includes telecasts
through Doordarshan. it was further provided that proviso to Section 4 [1] of
the said Act provides that the Central Government may grant a licence on such
conditions and in consideration of such payments as it thinks fit to any person
to establish, maintain or work a telegraph within any part of India. Relying
upon the provisions it was submitted that neither the CAB nor the TWI
respondent No. 10 of the writ application have obtained any licence for the
purpose of telecasting the matches direct from India." 114. The Court then
referred to the correspondence between the CAB and the DD between 31st March,
1993 and 31st Octo- ber, 1993 and the letters of no objection issued to the CAB
by the Ministry of Communications and the VSNL and to the acceptence by the
VSNL of the payments from TWI as per the demand of the VSNL itself for granting
facilities of uplinking the signal and recorded its primafacie finding that the
DD was agreeable to telecast matches live for India on a consideration of Rs.5
lakhs per match which was ac- cepted under protest and without prejudice by the
CAB and the only dispute was with regard to the revenue to be earned through
advertisements during the period of the matches.

The
Court said that it was not adjudicating on as to what and in what manner the
revenue through advertisements would be created and distributed between the
parties. It left the said points to be decided on merits in the appeal pending
before it and proceeded to observe as follows:

"...
but it present having regard to the interest of millions of Indian viewers who
are anxiously expecting to see such live 178 telecast, we record as Doordarshan
is inclined to telecast the matches for the Indian viewers on receipt of Rs.5
lakh per match and to enjoy the exclusive right of signalling within the
country being host broadcaster, we direct the CAB to pay immediately a sum of
Rs.5 lakhs per match for this purpose and the collection of revenue on account
of sponsorship or otherwise in respect of 28 minutes which is available for
commercial purpose be realised by the Doordarshan on condition that such amount
shall be kept in a separate account and shall not deal with and dispose of the
said amount until further orders and we make it clear regarding the entitlement
and the manner in which the said sum will be treated would abide by the result
of the appeal or the writ appli- cation. Accordingly, it is made clear that
Doordarshan shall on these conditions start immediately telecasting the live
matches of the Hero Cup for the subsequent matches from the next match in India. Mr. Das Id. counsel appearing on behalf of the appellant submits
that they were in a position technically or otherwise to telecast immediately.
With regard to the right of TWI to telecast the matches outside India is
concerned, we also record that on time of hearing the counsel appearing on
behalf of the appellant showed an order in three lines that the authority
concerned has summarily and without giving any reason and/or any hearing
whatsoever directed to VSNL not to allow the TWI to transmit or to telecast
from India in respect of the Hero Cup matches but it was submitted by the
learned Counsel appearing for the appellant that they are very much keen to
consider the matter in proper perspective in accordance with laws, having
regard to the national impact on this question. It appears that on the basis of
the representation made by VSNL, TWI came into the picture and subsequently TWI
entered into an agreement with the CAB. At this stage, we are not called upon
to decide the validity or otherwise of such an agreement entered into by the
parties. As a matter of fact, we are refer- ring this without prejudice to the
rights and contentions of the parties. It further appears that the Government
of India through the Department of Communication stated that the said
department had no objection with regard to the permission to the CAB for
temporarily importing electronic product equipments required for transmitting
one day matches of the Hero Cup as a part of Diamond Jubilee Celebration to be
started from November 7 to 27, 1993, the Ministry has no objection to proposal
"subject to the organisers Co-ordinating with WPC [DOT] for frequency
clearance from the Standing Advisory Committee on frequency allocation {SACFA}
for TV uplinking from different places and coordinating with VSNL, Bombay for
booking of TV transponders etc. It appears that the said no objection
certificate has created a legitimate expectation, particularly in view of the
fact that the money demanded by VSNL in this behalf was duly paid by TWI and
all ar- rangements have been made by TWI for performing the job. As we find
that no formal permission is required under proviso to Section 4 [1] of Indian
Telegraph Act is there in favour of the party, having regard to the facts
stated above and having regard to National and International impact on this
question and having regard to the fact that any decision taken will have the
tremendous impact on the International sports, we direct the appellant No.5 who
is respondent No.6 in the writ application. The Secretary, Ministry of
Telecommunication, Sanchar Bhavan, New Delhi, Government of India to consider
the facts and circumstances of the case clearly suggesting that there had
already been an implied grant of permission, shall grant a provisional
permission or licence without prejudice to the rights and contentions of the
parties in this appeal and the writ application and subject to the condition
that the respondent No.6 179 in the writ application will be at liberty to
impose such reasonable terms and condi- tions consistent with the provision to
Section 4 [1]of the Indian Telegraph Act, having regard to the peculiar facts
and circumstances of the case. If TWI comply with such terms and conditions
that may be imposed without prejudice to their rights and contentions in the
interest of sports and subject to the decision in this appeal or the writ
application shall be entitled to telecast for International viewers outside India.... The Secretary, Ministry of
Telecommunication, Sanchar Bhavan, New Delhi, Government of In- dia, is directed to decide this question as directed
by us within three days from today and all the parties will be entitled to be
heard, if necessary. We must put in on record our anxiety that the matter
should be taken in the spirit of sports not on the spirit of prestige or personal
interest and should approach the problem dispassionately rising above all its
narrow interest and personal ego..... In order to comply with this order any
order of detention of the equipments of TWI should not be given effect
to." 115. The Court also made it clear that in order to comply with its order,
any order of detention of the equipments of TWI should not be given effect to.
Notwithstanding this order or probably in ignorance of it, the Collector of
Customs, Bombay wrote to the CAB that it had given
an undertaking to fulfill all the conditions of the ad hoc order dated 2nd November, 1993 under which exemption was given to
it for importing the equipments. However, it had not fulfilled the conditions
laid down at [1] and [iii] of para 2 of the said ad hoc exemption order and,
therefore, it should pay an amount of Rs.3,29,07,711/as customs duty on the
equipment imported by TWI. They also threatened that if no such duty was paid,
the goods would be confiscated. In view of the said show cause notice, the CAB
moved the Division Bench and on 14th November, 1993. The lawyer of TWI also wrote a letter in the meanwhile on
13th November, 1993 to the Customs authorities at Bombay stating therein that
as TWI had sent a letter enclosing a copy of the order of the Division Bench
passed on 12th November, 1993 directing them not to give effect to the
detention of the equipments and complaining that in spite of it they had not
released the goods and, therefore, they had committed a con- tempt of the
Court. This grievance of CAB and TWI along with the complaint of the DD for not
permitting them to place their cameras at the requisite places, were heard by
the Division Bench on 14th
November, 1993 when
the match was already being played in Bombay. The Bench observed that the Court was given to understand that none of
the parties was inclined to go higher up against its earlier order and that
what was required was certain clarification of that order in the changed
circumstances. The learned counsel for the CAB stated that they were not going
to oppose the DD placing their cameras but the dispute had arisen as to the
signalling to be made for the telecast. According to the learned counsel for
the Union of the India, there could be only one signalling
from the field and DD should be treated as host broadcaster and the TWI should
take signal from it.

This
was opposed by the learned counsel for the CAB who con- tended. that DD had
been given exclusive right as host broadcaster so far as the telecasting of
matches in India was concerned. The telecasting of
matches abroad was to be done by TWI. The Division Bench held that the DD will
have the exclusive right of signalling for the purposes of tele- casting within
the country, and they were to be treated as host broadcasters so far as 180
telecasting within India was concerned. As far as TWI is
concerned, if it was authorised and permitted in terms of their earlier order,
it would be entitled to telecast outside the country and to send their signal
accordingly.

They
also stated that in case the signalling was required to be made by the TWI
separately the necessary permission should be given by the DD or other
competent authorities.

They
resolved the dispute with regard to the placement of cameras by directing that
DD will have first priority and if there was any dispute on that account it
would be resolved by the local head of the Police Administration at the venue
concerned. They also directed the Customs authorities, Bombay to release the equipments imported
for the purposes of TWI with the condition that the said equipments will be
used only for transmission of the matches and they shall not deal with or
dispose of the said equipments or remove it outside the country without the
permission of the Court. In particular, they also directed the VSNL to take
proper steps for uplinking and not to take any step to defeat the purpose.

116.
Against the said order of the Division Bench, the present appeals are preferred
by the Ministry of Information and Broadcasting and others whereas the writ
petition is filed by the CAB for restraining the respondents, (which include,
among others, Union of India [No. 1], Secretary, Ministry of Information &
Broadcasting [No.2], Director General, Doordarshan [No.3], Secretary, Ministry
of Communi- cations [No.5], Director, Department of Telecommunications [No.6],
and Videsh Sanchar Nigam Limited [No.9], from pre- venting, obstructing and
interfering with or creating any hurdles in the implementation of agreement
dated 14.6.1993 between the petitioner-CAB and respondent No. 10, i.e., TWI.

117.
The matter was heard by this Court on 15th November, 1993. It appears from the record that
although the High Court had directed the Secretary, Ministry of Communications
to decide the question of granting of licence under Section 4 [1] of the
Telegraph Act within 3 days from 12th November, 1993 by its order of the same
day, the Secretary had fixed the meeting for consideration of the application
only on the 16th November, 1993. 'Mat itself was a breach of the High Court's
order. This Court, therefore, directed the Secre- tary to hear the matter at 4.30 p.m. on 15th November, 1993 and communicate its decision to TWI or its counsel or to the CAB or its
counsel immediately thereafter but before 7.30 p.m. on the same day. This Court also directed the Customs authorities to
release the equipment forthwith which they had not done in spite of the High
Court's order. The TWI and CAB were, however, restrained from using the said
equipment till the licence was issued by the Secretary, Department of
Telecommunication.

118.
Pursuant to the direction given by this Court, the Secretary by his order of 15th November, 1993 after referring to the judgment of
the High Court and its impli- cation and after taking into consideration the arguments
of the respective parties, held as follows:

"In
this connection, we have to take into account an important point brought to our
notice by the Director General Doordarshan. It is true that Section 4 of the
Indian Telegraph Act of 1885 enables the government to give licences to
agencies other than Doordarshan or the 181 government departments to telecast.
In fact, such a permission had been given in January 1993 when the cricket
matches were telecast by the same TWI. However, subsequently, I am given to
understand that the government policy in the Ministry of I&B has been that
the uplinking directly by private parties/foreign agencies from India for the purpose of broadcasting
should not be permitted.

It is
true that in a cricket match we are not considering security aspects. But, the
point to be considered is whether uplinking. given in a particular case will
have its consequences on other such claims which may not be directly linked to
sports and which will have serious implications.

Within
the government, as per Allocation of Business Rules, it is the Ministry of I&B
which has the responsibility for formulation and implementation of the policies
relating to broadcasting/telecasting.

As was
made clear earlier, in this case, we are considering two aspects. One is the
generation of signals and the second is their communication. The Department of
Telecommunication comes in the picture so far as the communication aspect is
concerned.

Taking
into account the facts mentioned above, the only reasonable conclusion I reach
is that permission may be given to TWI for telecast overseas through the VSNL,
while Doordarshan will be telecasting within the country. The TWI will have to
get the signals from Doordarshan for uplinking through the VSNL by making mutual
arrangements. So far as VSNL is concerned, there should be no difficulty in
transmitting the signals through Intelsat as already agreed upon.

In my
view, the above decision takes into account the needs of the millions of
viewers both within the country and abroad who are keen to watch the game and
at the same time ensures that there is no conflict with the broad government
policy in the Ministry of I&B which is entrusted with the task of
broadcasting. It also takes into account the overall aspects and the reasonable
expectation created within the TWI by the series of clearances given by the
different authorities of the Government of India".

119.
This order which was passed around 7.30 p.m. was challenged by the CAB, and being an urgent matter, was heard by the
Court late at night on the same day. The Court stayed the order of the
Secretary to the extent that it imposed a condition that the TWI will have to
get the signals from the DD for uplinking through the VSNL by making mutual
arrangements. The Court directed that the TWI can generate its own signal by
focusing its cameras only on the ground where the matches were being played, as
directed by the Ministry of Home Affairs and that they will take care not to
focus their cameras anywhere else.

120.
For telecasting the triangular series and the West Indies tour to India in 1994
season, the same disputes arose between the parties. By their letter of 25th August, 1994, the BCCI requested the Director,
Sports, of the Ministry of Human Resources Development, Department of Youth
Affairs and Sports to grant permission to it or TWI/SPN to telecast the
triangular series and matches to be played between India and West Indies. By their letter of 30th August, 1994 written to the Secretary,
Department of Sports, the MIB opposed the grant of uplinking facilities to any
foreign agency. On 14th
September, 1994, Ishan
Television India Ltd. [with a tie-up with ESPN which had contract with 182
BCCI, applied to the VSNL for uplinking facilities for telecasting of the said
matches. The VSNL thereafter wrote to the NM for their "no objection"
and the NUB opposed the grant of "no objection" certificate and
objected to VSNL writing to the MIB directly for the purpose. The MM also
stated that their view in the matter was very clear that satellite uplinking
from Indian soil would be within the exclusive competence of the
MIB/DoT/DOS-and that the telecast of sporting events would be the exclusive
privilege of DD. By their letter of 26th September, 1994, the 'nodal' Ministry,
i.e., Ministry of Human Resources Development [Department of Youth Affairs and
Sports addressed to all the Ministries and Departments including the MIB called
for the remarks on the letter of the BCCI addressed to the nodal Ministry. The
MIB again wrote to the Sports Department of the nodal Ministry, opposing grant
of Single Window service to the BCCI. On 3rd October, 1994, the VSNL returned the advance
which it had received from Ishan TV for uplinking facilities. On 7th October, 1994, this Court passed the following order:

"Pending
the final disposal of the matters by this interim order confined to telecast
the International Cricket Matches to be played in India from October 1994 to
December 1994, we direct respondent Nos. 1 and 6 to 9 in Writ Petition No.836/
93 to grant forthwith necessary permission/sanctions and uplinking facilities
for production, transmission and telecasting of the said matches.

We
also direct respondent Nos.2, 3 and 4 in writ petition No.836/93 and all other
Government Agencies not to obstruct/restrict in any manner whatsoever
production, transmission and telecasting of the said matches for the said
period by the petitioner-applicant only on the ground where the Cricket Matches
would be played and the signals are generated under the direct supervision of
the VSNL personnel.

So far
as the production, transmission and telecasting of these matches in India is
concerned, the Doordarshan shall have the exclusive right in all respects for
the purpose, and the petitioner-applicant shall not prevent Doordarshan from
doing so, and in particular shall afford all facilities for Doordarshan to do
so.

So far
as the placement of cameras are concerned both petitioner-applicant as well as
Doordarshan shall have equal rights. This shall be ensured by Shri Sunil
Gavaskar in consultation with such technical experts as he may deem necessary
to consult. He is requested to do so. As far as the remuneration for Shri Sunil
Gavaskar and the technical expert is concerned, both Doordarshan as well as the
petitioner- applicant will share the remuneration equally which will be fixed
by this Court.

As
regards the revenue generated by the advertisement by Doordarshan is concerned,
Doordarshan will deposit the said amount in a separate account and preferably
in a nationalised Bank. The Doordarshan will have the exclusive right to
advertisement. All the IAs are disposed of accordingly".

121.
Since certain disputes arose between the parties, on 18th October, 1994, this Court had to pass the
following order:

"The
BCCI will ensure that all Cricket Associations and staging Centres shall extend
every facility to the personnel authorised by the Doordarshan to enter into the
Cricket Ground for production, transmission and telecasting of the 183 matches
without any late or hindrance.

The
BCCI will also ensure that all Cricket Associations staging the matches will
make available every facility and render such assistance as may be necessary
and sought by the Doordarshan for effective telecasting of the matches at the
respective grounds and stadia.

The
BCCI shall not permit the ESPN to enter into any contract either with A.T.N. or
any other Agency for telecasting in any manner all over India, whether through the Satellite
footprints or otherwise, Cricket Matches which are being telecast in India by the Doordarshan. If the ESPN has
entered into any such contract either with A.T.N. or any other Agency, that
contract should be cancelled forthwith.

Since
this Court is seized of the present matter, no court should entertain any writ
petition, suit or application which is connected in any manner with the
discharge of obligation imposed on the respective parties to the present
proceedings. If any such writ petition suit or application is already
entertained, the Courts should not proceed with the same till further orders of
this Court.

The
BCCI and the Doordarshan will mutually solve the problem of the Control Room
and Storage Room facilities needed by the Doordarshan, preferably in one
meeting La Bombay on 20th October, 1994".

122.
The law on the subject discussed earlier makes it clear that the fundamental
right to freedom of speech and expression includes the right to communicate
effectively and to as large a population not only in this country but also
abroad, as is feasible. There are no geographical barriers on communication.
Hence every citizen has a right to use the best means available for the
purpose. At present, electronic media, viz., T.V. and radio, is the most
effective means of communication. The restrictions which the electronic media
suffers in addition to those suffered by the print media, are that

[i] the
airwaves are a public property and they have to be used for die benefit of the
society at large,

[ii] the
frequencies are limited and

[iii] media
is subject to pre-censorship.

The
other limitation, viz., the reasonable restrictions imposed by law made for the
purposes mentioned in Article 19 [2] is common to all the media. In the present
case, it was not and cannot be the case of the NM that the telecasting of the
cricket matches was not for the benefit of the society at large or not in the
public interest and, therefore, not a proper use of the public property. It was
not the case of the MIB that it was in violation of the provisions of Article
19 [2].

There
was nothing to be pre-censored on the grounds mentioned in Article 19 [2]. As
regards the limitation of resources, since the DD was prepared to 'telecast the
cricket matches, but only on its terms it could not plead that there was no
frequency available for telecasting. The DD could also not have ignored the
rights of the viewers which the High Court was at pains to emphasise while
passing its orders and to which we have also made a reference. The CAB/BCCI
being the organisers of the event had a right to sell the telecasting rights of
its event to any agency.

Assuming
that the DD had no frequency to spare for telecasting the matches, the CAB
could certainly enter into a contract with any agency including a foreign
agency to telecast the said matches through that agency's frequency for the
viewers in this country [who could have access to those frequen- 184 cies] as
well as for the viewers abroad. The orders passed by the High Court in effect
gave a right to DD to be the host broadcaster for telecasting in this country
and for the TWI, for telecasting for the viewers outside this country as well
as those viewers in this country who have an access to the TWI frequency. The
order was eminently in the interests of the viewers whatever its merits on the
other aspects of the matter.

123.
The orders passed by the High Court have to be viewed against the backdrop of
the events and the position of law discussed above. The circumstances in which
the High Court passed the orders and the factual and legal considerations which
weighed with it in passing them speak for themselves.

However,
since the cricket matches have already been telecast, the question of the
legality or otherwise of the orders has become academic and it is not necessary
to pronounce our formal verdict on the same. Hence we refrain from doing so.

124.
We, therefore, hold as follows:

[i]
The airwaves or frequencies are a public property.

Their
use has to be controlled and regulated by a public authority in the interests
of the public and to prevent the invasion of their rights. Since the electronic
media involves the use of the airwaves, this factor creates an in- built
restriction on its use as in the case of any other public property.

[ii]
The right to impart and receive information is a species of the right of free-
the best means of imparting and receiving information and as such to have an
access to telecasting for the purpose.

However,
this right to have an access to telecasting has limitations on account of the
use of the public property, viz., the airwaves, involved in the exercise of the
right and can be controlled and regulated by the public authority.

This
limitation imposed by the nature of the public property involved in the use of
the electronic media is in addition to the restrictions imposed on the right to
freedom of speech and expression under Article 19 [2] of the Constitution.

[iii]
The Central Government shall take immediate steps to establish an independent
autonomous public authority repre- sentative of all sections and interests in
the society to control and regulate the use of the airwaves.

[iv]
Since the matches have been telecast pursuant to the impugned order of the High
Court, it is not necessary to decide the correctness of the said order.

[v]
The High Court 'will now apportion between the CAB and the DD the revenues
generated by the advertisements on T.V. during the telecasting of both the
series of the cricket matches, viz., the Hero Cup, and the International
Cricket Matches played in India from
October to December 1994, after hearing the parties on the subject.

125.
The civil appeals are disposed of accordingly.

126.
In view of the disposal of the civil appeals, the writ petition filed by the
Cricket Association of Bengal also stands disposed of accordingly.

185
B.P. JEEVAN REDDY, J.

127.
Leave granted in Special Leave Petitions.

128.
While I agree broadly with the conclusions arrived at by my learned brother
Sawant,J. in Para 24 of his judgment, I propose to record my views and
conclusions on the issues arising in these matters in view of their far-
reaching importance.

129.
Cricket is an interesting game. Radio, and more particularly the television has
made it the most popular game in India. It has acquired tremendous mass appeal.

Television
has brought the game into the hearths and homes of millions of citizens across
the country, enhancing its appeal several-fold. Men, women and children who had
no interest in the game earlier have now become its ardent fans - all because
of its broadcast by radio and television.

This
has also attracted the attention of business and commerce. They see an
excellent opportunity of advertising their products and wares. They are
prepared to pay huge amounts therefor. The cricket clubs which conduct these
cricket matches have come to see an enormous opportunity of making money
through these matches. Previously, their income depended mainly upon the ticket
money. Now, it probably does not count at all. The real income comes from the
advertisements both in-stadia as well as the spot advertisements over radio and
television. The value of in- stadia advertisement has increased enormously on
account of its constant exposure on television during the progress of the game.
Lured by this huge revenues, organisers of these events now propose to sell the
broadcasting rights used compendiously to denote both radio and television
rights - of these events to the highest bidder, be he foreign agency or a local
one. They find that Doordarshan is not in a position to or willing to pay as
much as the foreign agencies are. Accordingly, they have sold these rights to
foreign agencies. But - and here lies the rub - broadcasting the event,
particularly telecasting, requires import, installation and operation of
certain equipment by these foreign agencies for which the law (Indian Telegraph
Act) requires a prior permission - licence - to be granted by Government of
India. Earlier, they wanted uplinking facility too through Videsh Sanchar Nigam
Ltd., a Government of India-owned company. Now they suggest, it may not be
necessary. They say, they can uplink directly from their earth station
installed, or parked, as the case may be, near the playing field to their
designated communication satellite which will beam it back to earth The
revolution in communications/ information technology is throwing up new issues
for the courts to decide and this is one of them.

130.
The Doordarshan says that all these years it has been telecasting the cricket
events in India and has helped it popularise. So
also is the plea of All India Radio (AIR). They are Government agencies -
departments of Government. AIR and Doordarshan enjoy a monopoly in this country
in the matter of broadcasting and telecasting. They cannot think of any other
agency doing the same job. They are not prepared to reconcile themselves to any
other agency, more particularly, a foreign agency being invited to broadcast/
telecast these events and they themselves being asked to negotiate and purchase
these rights from such foreign agencies. They say, they alone should be allowed
to telecast and broadcast these events; that they alone must act as the 'host
broadcaster', which means they alone shall generate the host broadcasting
signal, which the interested foreign agencies can purchase from them. They are,
of course, not prepared to pay as much amounts as the foreign agencies. They
are seeking to keep away the foreign agencies with the help of the legal
provisions in force in this country. If they are successful in that, it is
obvious, they may - they can - dictate terms to the organisers of these events.
If they cannot, the organisers will be in a position to dictate their terms.
But here again, there is another practical, technological, problem.

The
foreign agencies do beam their programmes over Indian territory too, but for receiving these programmes you require -
period - a dish antenna, which costs quite a bit.

Our TV
sets cannot receive these programmes through the ordinary antenna. Doordarshan
alone has the facility of telecasting programmes which can be received through
ordinary antennae. Millions in this country, who arc deeply interested in the
game, cannot afford these dish antennae but they want to watch the game and
that can be provided only by the Doordarshan. And this is its relevance.

Doordarshan
says, if the organisers choose to sell their telecasting rights to a foreign
agency, they would have nothing to do with the event. They would not telecast
it themselves. If the foreign agencies can telecast them, well and good - they
can do so in the manner they can, but Doordarshan would not touch the event
even by a long barge- pole. But, the Doordarshan complains, they are being
compelled by the courts to telecast these events in public interest; such
orders have been passed in writ petitions filed by individuals or groups of individuals
purporting to represent public interest; the 1995 (2) Doordarshan is thus made
to lose at both ends - and the organisers are laughing all the way; telecasting
an event requires good amount of preparation; advertisements have got to be
collected well in time; it cannot be done at the last minute; without
advertisements, telecasting an event results in substantial loss to public
exchequer - it says. These are the problems which have given rise to these
appeals and writ petitions. They raise inter alia grave constitutional
questions touching the freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution. The in- terpretation of Section 4(1) of the
Indian Telegraph Act, the right to establish private broadcasting and telecasting
facilities/ stations - in short, the, whole gamut of the law on broadcasting
and telecasting has become involved in the issues arising herein.

FACTUAL
CONSPECTUS-

131.
Cricket Association of Bengal (CAB) organised an international
cricket tournament under the name and style of "Hero Cup Tournament"
to commemorate and celebrate its diamond jubilee celebrations. Apart from India, national teams of West Indies, South Africa, Sri
Lanka and Zimbabwe to participate though the national
team of Pakistan withdrew therefrom having agreed to
participate in the first instance. The Hero Cup Tournament comprised several
one day matches and its attraction was not confined to India but to all the cricket loving
countries which, in effect, means all the commonwealth countries. The
tournament was to be held during the month of November, 1993. Until 1993,
Doordarshan was acting as the host broadcaster in respect of all the cricket
matches played in India. It 187 generated the 'host
broadcaster signal', which signal could be assigned or sold to foreign
television organisations for being broadcast in their countries. However, an
exception was made by the Government of India - for reasons we do not know - in
respect of an earlier tournament; a foreign agency was permitted to telecast
the matches in addition to Doordarshan. This exception appears to have set a
precedent. On March 15,
1993 the Cricket
Association of Bengal wrote to Doordarshan asking it to send their detailed
offer which could be any one of the two alternatives mentioned in the letter.
The two alternatives mentioned were: "(a) that you (Doordarshan) would
create 'host broad- caster signal' and also undertake live telecast of all the
matches in the tournament or (b) that'any other party may create the 'host
broadcaster signal' and you would only purchase the rights to telecast in India." The Doordarshan was
requested to clearly spell in their offer the royalty amount they were willing
to pay. It was further made clear that "in either case it may also please
to noted that foreign T.V. rights will be retained by this association".

The
letter also suggested the. manner in which and by which date the royalty amount
was to be paid to it. The offer from Doordarshan was requested to be sent by March 31, 1993.

On March 18, 1993 Doordarshan wrote to CAB asking it
to send in writing the amount it expects as rights' fee payable to it for
granting exclusive telecasting rights "without the Star T.V. getting
it". On March 19,
1993, CAB wrote to
Doordarshan stating that "we are agreeable to your creating the Host
Broadcaster Signal and also granting you exclusive rights for India without the Star TV getting it. And
we would charge you US $ 800,000 (US Dollars Eight Hundred Thousand only) for
the same. We 'Will, however, reserve the right to sell/licence right worldwide,
excluding India and Star TV. You would be under an
obligation to provide the picture and commentary, subject to the payment of
your technical fees". On March 31, 1993 Doordarshan replied back stating
that the exclusive rights for India without Star TV getting it may be granted
to Doordarshan at a cost of Rupees one crore. Evidently, because no response
was forthwith coming from CAB, the Doordarshan sent a reminder on May 4, 1993. On May 12, 1993,
CAB wrote to Doordarshan. By this letter, CAB informed Doordarshan that they
have now decided "to sell/allot worldwide TV Rights for the tournament to
one party only, instead of awarding separate areawise and companywise
contracts". In view of this revised decision, the CAB called upon
Doordarshan to let them know whether Doordarshan is in the deal and if so to
submit its detailed offer for worldwide TV rights by May 17, 1993. The Doordarshan was given an
option either to purchase TV rights outright or to purchase TV rights on the
basis of sharing of rights fee. Even before receiving this letter of CAB dated
May 12, 1993, Doordarshan addressed a letter to CAB on May 14, 1993 stating
that while Doordarshan is still committed to its bid of Rupees one crore, there
is speculation that Pakistan may not participate in the tournament which would
adversely affect the viewership and commercials. In such an eventuality, the
Doordarshan said, it will have to re-think its bid.

132.
On June 18, 1993 Doordarshan sent a fax message to
CAB referring to the press reports that CAB has entered into amendment with
Transworld Image (TWI) for the 188 TV coverage of the said tournament and that,
therefore, Doordarshan has decided not to telecast the tournament matches
organised by paying TWI. It stated that Doordarshan is not prepared to enter Into
any negotiation with TWI to obtain TV rights for the event. will not 133.
Months passed by and then on October 18, 1993,
CAB wrote a detailed letter to Doordarshan. In this letter, CAB stated that
though they were expecting an offer Doordarshan was offering only a sum of
Rupees one crore and that they have received offers from agencies abroad
including TWI which were much higher than Rupees two crores and that too in
foreign exchange. Since Doordarshan was not interested in increasing its offer,
the letter stated, CAB entered into a contract with TWI for the telecast of
matches. Even so, the letter stated, the CAB is still keen that Doordarshan
comes forward to telecast the matches since it does not wish to deprive 800
millions people of this country and that accordingly they have made TWI agree
for co-production with Doordarshan. It was also stated that Doordarshan should
not claim exclusive rights and the CAB would be at liberty to sell the rights
to Star TV. The letter further stated that the Doordarshan has not been
responding to their letters and that meanwhile several foreign TV organisations
and networks have been approaching them to telecast their matches to the Indian
audience. The letter also referred to their information received from some
other sources that Doordarshan is interested in acquiring the rights of tele
cast provided its allowed produce some matches directly and that matches
produced by TWI are made available to Doordarshan without payment of technical
fees. The letter indicated the matches which Doordarshan would be allowed to
telecast directly and the matches which TWI was to telecast directly. This
offer was, however, subject to certain conditions which inter alia included the
condition that Doordarshan will not pay access fee to CAB but shall allow four
minutes' advertising time per hour 9i.e. a total of twenty eight minutes in
seven hours) and that CAB will be at liberty to sell such time slots to
advertisers and receive the proceeds therefor by itself.

134.
On October 27, 1993 Doordarshan replied that they are
not interested in the offer made by CAB in its letter dated October 18, 1993. They stated that they have never
agreed to any joint production with TWI. On October 29, 1993, CAB again wrote
to Doordarshan expressing their regret at the decision of the Doordarshan
conveyed in their letter dated September 27, 1993 and stated.......... purely
in deference to your sensitivity about taking a signal from TWI, CAB would be
quite happy to allow you production of your own picture of matches; you may
like to buy rights and licence from CAB, at a price to be mutually agreed upon.
We would also like to clarify that these rights will be on non- exclusive basis
for Indian territory". Doordarshan's response was
requested at the earliest. On October 30, 1993, Doordarshan confirmed its
message sent that day expressing their refusal to pay any access fee to CAB and
stating further that if Doordarshan has to telecast the matches live, CAB has
to pay technical charges/ production fee at the rate of Rupees five lacs per
match and that Doordarshan shall have exclusive rights for the signal
generated. There was a further exchange of letters, which it is unnecessary to
refer.

189
135. While the above correspondence was going on between CAB and Doordarshan,
the CAB applied for and ob- tained the following permissions from certain
departments.

They
are:

(a) On
September 2, 1993, the Government of India, Ministry
of Human Resource Development (Department of Youth Affairs and Sports) wrote to
CAB stating that government has no objection to the proposed visit of the
cricket teams of the participating countries in November 1993. The government
also expressed its no objection to provide the conversion facility for guarantee
money and prize money for foreign players subject to a particular cell'ing.

(b)
Videsh Sanchar Nigam Limited (VSNL) indicated its charges for providing
uplinking facility to INTELSAT and accepted the said charges when paid by the
CAB/TWI.

(c) On
October 13, 1993 the Government of India, Ministry
of Home Affairs wrote to CAB expressing its no objection to the filming of
cricket matches and to the use of walkie- talkie sets in the playground during
the matches. It also expressed its no objection in principle to the production
and technical staff of TWI visiting India.

(d) On
October 20, 1993, the Department of
Telecommunications addressed a letter to the Central Board of Excise and
Customs expressing its no objection to tem- porary import of electrical
production equipment required for transmission of the said matches between November 7-27, 1993 subject to the organisers
coordinating with wireless planning committee for frequency clearance and also
with VSNI.

(e) On
November 2, 1993, the Ministry of Finance
(Department of Revenue) addressed a letter to Collector of Customs, SaharAirport, Bombay intimating him of the grant of
exemption from duty for the temporary import of electrical equipment by TWI,
valued at Rs.4.45 crores subject to certain conditions.

136.
Inasmuch as no agreement could be arrived at between CAB and Doordarshan, the
Department of Telecom- munications addressed a letter to VSNL on November 3, 1993 (on the eve of the commencement of
the matches) to the fol- lowing effect: "Refer to your letter No. 18IP(TWI)/93-TG
dated 13.10.1993 and discussion of Shri V.Babuji with W.A. on 2.11.1993
regarding uplink facility for telecasting by TWI of C.A.B. Jubilee Cricket
matches. You are hereby advised that uplink facilities for this purpose should
NOT repeat NOT be provided for T.W.I. This has the approval of Chairman (TC)
and Secretary, DoT. Kindly confirm receipt." The VSNL accordingly
intimated CAB of its inability to grant uplinking facility and also returned
the amount received earlier in that behalf 137. Faced with the above
developments, the CAB approached the Calcutta High Court by way of a writ
petition being Writ Petition No.F.M.A.T.Nil of 1993 asserting that inspite of
their obtaining all permissions including the TV uplinking facilities from VSNL
as contemplated by the proviso to Section 4 of the Indian Telegraph Act,
Doordarshan - and other governmental authorities at the instance of Doordarshan
- are seeking to block and prevent the telecast of the matches by TWI.

190
The reliefs sought for in the writ petition are the following:

(1)A
mandamus commanding Respondents 1, 3 and 4 (Union of India, Director General,
Information and Broadcasting and Director General, Doordarshan) and other
respondents to ensure uninterrupted and unobstructed telecast and broadcast of
Hero Cup tournament between November 1028, 1993 and to take all appropriate
measures for such telecast and broadcast.

(ii)A
mandamus to the respondents to provide all arrangements and facilities for
telecast and broadcast of the Hero Cup tournament by the appointed agencies of
the petitioners.

(iii)A
mandamus restraining the respondents from- seizing, tempering with, removing or
dealing with any equipment relating to transmission telecast and broadcast of
the said tournament; and (iv)Restraining the respondents from interfering or
disrupting in any manner the live transmission and broadcast of the said
tournament by the petitioners and their agents.

138. A
learned Single Judge of the Calcutta High Court heard the matter on November 8, 1993. The learned Judge directed the
matter to come up on the next day with a view to enable the Advocate for the
Union of India to obtain necessary instructions in the matter. At the same
time, he granted an interim order of injunction in terms of prayers (i) and (j)
in the writ petition effective till the end of the next day.

Prayers
(i) and (j) in the writ petition read as follows:

(i)
Interim order commanding the Respondents, their servants, agents, employees or
otherwise to provide all adequate assistance and cooperation to the Petitioners
and/or their appointed Agency for free and uninterrupted telecast and broadcast
of HERO CUP TOURNAMENT between 10th November, 1993 and 28th November, 1993;

(i) An
interim order of injunction restrain- ing the Respondents their servants,
agents, employees and others from tempering with, removing, seizing or dealing
with any equipments relating to transmission telecast and broadcast of HERO CUP
TOURNAMENT belonging to and/or their appointed agency in any manner whatsoever.

139.
The order made it clear that the said order shall not prevent Doordarshan from
telecasting any match without affecting any arrangement arrived at between CAB
and TWI.

140.On
the next day, i.e., November
9, 1993, the learned
Single Judge heard the Advocate for the Union of India but declined to vacate
the interim order passed by him on the previous day. He further restrained the
respondents to the writ petition from interfering with the frequency lines
given to the Respondent No.10, i.e., TWI as per request made by VSNL to SAT in
view of the fact that VSNL had accepted the proposal of CAB and TWI and had
also received the fees therefor. On November 11, 1993, the learned Judge passed
another order, on the representation of the learned counsel for the writ
petitioners, that the equipment brought by TWI for the purpose of production of
transmission and telecasting of cricket matches which was seized by the Bombay
customs authorities, allegedly under the instructions of the Ministry of Telecommu-
191 nications and Ministry of Information and Broadcasting, be released. The
learned Judge directed that all the governmental authorities including the
customs authorities shall act in accordance with the interim orders dated 8/9th November, 1993. Meanwhile, it appears, certain
individuals claiming to be interested in watching cricket matches on television
filed independent writ petitions for a direction to the Doordarshan to telecast
the matches. The learned Judge expressed the opinion that by their internal
fight between Respondents 1 to 5 on one hand and Respondent No.6 (reference is
to the ranking in the writ petition) on the other, millions of viewers in India are deprived of the pleasure of
watching the matches on television. He then referred to the representation that
at the instance of Doordarshan and others, All-India Radio (AIR) too has
stopped broadcasting the matches. The learned Judge observed that there is no
reason for AIR to do so and accordingly directed the Union of India and others including
the Ministry of Information and Broadcasting to broadcast the remaining cricket
matches on AIR as well.

141.
Aggrieved by the orders of the learned Single Judge aforementioned, the Union
of India and other governmental agencies filed a writ appeal (along with an
application for stay) which came up for orders on November 12, 1993 before a Division Bench of the Calcutta High Court.

It was
submitted by the learned counsel for the Union of India that though the
Doordarshan is very much keen to telecast the matches, the CAB has really
created problems by entering into an agreement with TWI. He submitted that
under Section 4 of the Telegraph Act, 1885, the Central Government has the
exclusive provilege of establishing, maintaining and working telegraph and that
the definition of the expression "telegraph" includes telecast. He
submitted that neither CAB nor TWI have obtained any licence or permission as
contemplated by the proviso to Section 4(1) of the Indian Telegraph Act and,
therefore, TWI cannot telecast the matches from any place in Indian territory.
After referring to the rival contentions of the parties and the correspondence
that passed between them, the Division Bench observed that there were two
dimensions to the problem arising before them, viz., (i) the right to telecast
by Doordarshan within India and (2) right of TWI to telecast outside India for
viewers outside India. Having regard to the urgency of the matter and without
going into the merits of the rival contentions, and keeping in view the
interest of millions of viewers, the Division Bench observed: "we record,
as Doordarshan is inclined to telecast the matches for the Indian viewers on
receipt of Rs.5 lakhs per match and to enjoy the exclusive right of signalling
within the country being the host broadcaster, we direct the CAB to pay
immediately a sum of Rs.5 lakhs per match for this purpose and the collection
of revenue on account of sponsorship or otherwise in respect of 28 minutes
which is available for commercial purpose be realised by the Doordarshan on
condition that such amount shall be kept in a separate account and shall not be
dealt with and dispose of the said amount until further orders" to be
passed in the said writ appeal. The Doordarshan was accordingly directed to immediately
start telecasting the matches. The Bench then took up the question whether TWI
is entitled to telecast the matches from Indian territory. It noted that no
formal order as required under the proviso to Section 4(1) 192 of the Telegraph
Act has been granted in favour of either CAB or TWI. Purporting to take notice
of the national and international impact of the issue, the Bench directed the
5th appellant before them, viz.., the Secretary, Ministry of
Telecommunications, Government of India "to consider the facts and
circumstances of the case clearly suggesting that there had already been an
implied grant of permission, shall grant a provisional permission or licence
without prejudice to the rights and contentions of the parties in this appeal
and the writ application and subject to the condition that Respondent No.6 (5th
appellant in appeal) in the writ application will be at liberty to impose such
reasonable terms and conditions consistent with the provision to Section 4(1)
of the Indian Telegraph Act having regard to the peculiar facts and
circumstances of the case." (emphasis added). The Secretary was directed
to decide the said question within three days from the date of the said order
after hearing all the parties before the Division Bench, if necessary, 142. On
November 14, 1993, the matter was again taken up by the Division Bench, on
being mentioned by the parties. The first problem placed before the Bench was
placement of cameras. The Doordarshan authorities complained that they have not
been given suitable place for the purpose of telecasting. Doordarshan further
submitted that there can only be one signalling from the field and that in
terms of the orders of the Division Bench, Doordarshan should be the host
broadcaster and TWI should take the signal from Doordarshan. This request was
opposed by the CAB and TWI.

The
Bench directed that according to their earlier order the TWI is entitled to
telecast outside the country and to send their signal accordingly and in case
the signalling is required to be made by TWI separately, the necessary
permission should be given by the Doordarshan and other competent authorities
therefor. Regarding placement of cameras, certain directions were given.

143.
Aggrieved by the orders of the Division Bench dated 12/14th November, 1993, the
Secretary, Ministry of Informa- tion and Broadcasting, Government of India,
Director General, Doordarshan and Director General, Akashvani filed two Special
Leave Petitions in this court, viz., S.L.P.(C)Nos.18532-33 of 993. Simultaneously,
CAB filed an independent writ petition in this court under Article 32 of the
Constitution being W.P.(C) No.836 of 1993. The prayers in this writ petition
are practically the same as are the prayers in the writ petition filed in the
Calcutta High Court. The additional prayer in this writ petition related to
release of equipment imported by TWI which was detained by customs authorities
at Bombay. On November 15, 1993, this court directed the Secretary, Ministry of
Telecommunications, Government of India to hold the meeting, as directed by the
Calcutta High Court, at 4.30P.M. on that very day (November 15, 1993) and
communicate the decision before 7.30P.M. to TWI or its counsel or to CAB or its
counsel. The customs authorities were directed to release the equipment
forthwith. The TWI was, however, restrained from using the equipment for
telecast purpose unless a licence is issued by the Secretary, Ministry of
Telecommunications in that behalf.

144.
Pursuant to the orders of this court, Shri N.Vithal, Chairman,
Telecommunications and Secretary, DoT passed orders on 193 November 15, 1993
which were brought to the notice of this court on that very day. This court
stayed the said order to the extent it imposed a condition that TWI will get
their signal from Doordarshan for uplinking through VSNL. The TWI was permitted
to generate their own signal by focussing their cameras on the ground. It was
observed that the said order shall not be treated as a precedent in future
since it was made in the particular facts and circumstances of that case.

145.
The matches were telecast in accordance with the directions given by this court
and the High Court but the Special Leave Petitions and the Writ Petition
remained pending. While so, a new development took place in 1994 which now
requires to be mentioned.

146.
In connection with World Cup Matches scheduled for the year 1996, certain
correspondence took place between Doordarshan and the Board of Cricket Control,
India (BCCI).

While
the said correspondence was in progress, each side re- affirming their
respective stand, BCCI arranged certain international cricket matches to be
played between the national teams of India, West Indies and New Zealand during
the months of October-December, 1994. BCCI entered into an agreement with ESPN,
a foreign agency, for telecasting all the cricket matches organised by BCCI in
India for the next five years for a consideration of US $30 million.

Doordarshan
was totally excluded. ESPN in turn made an offer to Doordarshan to purchase the
right to telecast the matches in India from ESPN at a particular consideration
which the Doordarshan declined.

147.
On September 20, 1994, we commenced the hearing of these matters. While the
hearing was in progress, the BCCI filed a writ petition, being Writ Petition
No.628 of 1994, for issuance of a writ, order or direction to the respondents
(Government of India and its various departments and agencies) to issue and
grant the necessary licences and/or permissions in accordance with law to BCCI
or its appointed agencies for production, transmission and live, telecast of
the ensuing international cricket matches to be played during the months of
October-December, 1994 and to restrain the Doordarshan and other authorities
from interfering with or obstructing in any manner the transmission,
production, uplinking and telecast of the said matches. This writ petition was
occasioned because the au- thorities were said to be not permitting ESPN to
either bring in the necessary equipment or to telecast the matches from the
Indian territory. The said writ petition was withdrawn later and Interlocutory
Applications filed by the BCCI in the pending special leave petition and writ
petition seeking to be impleaded in those matters and for grant of reliefs
similar to those prayed for in Writ Petition No.628 of 1994. Since the hearing
was yet to be concluded, we passed certain orders similar to those passed by
this court earlier - confined, of course, to the matches to be played during
the months of October-December, 1994.

CONTENTIONS
URGED BY THE PARTIES AND THE QUESTIONS ARISING FOR CONSIDERATION.

148.
The CAB and BCCI have taken a common stand, were represented by the same
counsel and have also filed common written submissions. It is not possible to
reproduce all their contentions as put forward in their written submissions
because 194 of the number of pages they run into. It would suffice if I set out
their substance. The submissions are:

(a)
CAB and BCCI are non-profit-making sporting organisations devoted to the
promotion of cricket and its ideals. They organise international cricket
tournaments and series from time to time which call for not only good amount of
Organisation but substantial expense. Payments have to be made to the members
of the teams participating.

Considerable
amount of money has to be expended on the training of players and providing
infrastructural facilities in India. All
this requires funds which have to be raised by these organisations on their
own. Accordingly, CAB entered into an agreement with TWI for telecasting the
Hero Cup Tournament matches to be played in the year 1993. The necessary
permissions were applied for and granted by the Ministries of Home, Defence,
Human Resource Development and Telecommunications. The Ministry of
Telecommunications/VSNL accepted the monies for the purpose of providing
uplinking facilities, which does amount to implied grant of permission under
the proviso to Section 4(1) of the Telegraph Act. In any event, the acceptance
of the monies made it obligatory upon the ministries to grant the said licence.
It is only on account of the interference and lobbying by Doordarshan and
Ministry of Information and Broadcasting that the other ministries went back
and refused to permit the telecast.

The
action of the Doordarshan and the Ministry of Information and Broadcasting is
malafide, unreasonable and authoritarian besides being illegal.

(b)
The game of cricket provides entertainment to public.

It Is
a form of expression and is, therefore, included within the freedom of speech and
expression guaranteed by Article 19(1)(a) of the Constitution. This right
includes the right to telecast and broadcast the matches. This right belongs to
the organiser of the matches which cannot be interfered with by anyone. The
organiser is free to choose such agency as it thinks appropriate for
telecasting and broadcasting its matches. The Doordarshan or the Ministry of
Information and Broadcasting can claim no right whatsoever to telecast or
broadcast the said matches. If they wish to do so, they must negotiate with the
organiser and obtain the right. They have no inherent right, much less a
monopoly, in the matter of telecasting and broadcasting these matches. It is
not their events. If the organisers, CAB and BCCI herein, choose to entrust the
said rights to a foreign agency, such foreign agency is merely an agency of the
organisers and the mere fact that it happens to be a foreign agency is no
ground for depriving the organisers, who as Indian citizens, are entitled to
the fundamental right guaranteed by Article 19(1)(a). The said right can be
restricted or regulated only by a law made with reference to the grounds
mentioned in clause (2) of Article 19 and on no other ground.

(c)
Section 4 of the Indian Telegraph Act must be understood and construed in the
light of Article 19(1)(a).

So
read and understood, it is only a regulatory provision.

If a
person applies for a licence for telecasting or broadcasting his speech and
expression - in this case the game of cricket - the appropriate authority is bound
to grant such licence unless it can seek refuge under a law made in terms of
clause (2) of Article 19. The appropriate authority cannot also impose such
conditions as would 195 nullify or defeat the guaranteed freedom. The
conditions to be imposed should be reasonable and relevant to the grant.

(d)
Doordarshan or AIR has no monopoly in the matter of telecasting/broadcasting.
Radio and television are only a medium through which freedom of speech and
expression is expressed. Article 19(2) does not permit any monopoly as does
clause (6) in the matter of Article 19(1)(g). Section 4, which contemplates
grant of telegraph licences is itself destructive of the claim of monopoly by
Doordarshan/AIR.

(e)
Right to disseminate and receive information is a part of the right guaranteed
by Article 19(1)(a). Televising the cricket match is a form of dissemination of
information.

The
mere fact that the organisers earn some income from such activity does not make
it anytheless a form of expression.

It has
been held repeatedly by this court in the matter of freedom of press that the
mere fact that publication of newspaper has also certain business features is
no ground to treat it as a business proposition and that it remains an activity
relatable to Article 19(1)(a). Business activity is not the main but only an
incidental activity of CAB/BCCI,. the main activity being promotion of cricket.
It follows that whenever any citizen of this country seeks to exercise this right,
all necessary permissions have to be granted by the appropriate authorities.
The only ground upon which it can be refused is with reference to law made in
the interest of one or the other ground mentioned in Article 19(2) and none
else.

(f)
With the technological advance and the availability of a large number of
frequencies and channels, being provided by the increasing number of
satellites, the argument of limited frequencies and/or scarce resource is no
longer tenable. The BCCI does not want allotment of frequency - not even the
uplinking facility, since it has the facility to uplink directly from the earth
station to Gorizon-Russian satellite with which ESPN has an arrangement All
that the BCCI wants is a licence/permission for importing and operating the
station, wherever the match is played. In such an eventuality, Doordarshan does
not come into picture at all. Of course, in connection with Hero Cup matches,
the CAB wanted uplinking facility for the reason that it wanted uplinking to
INTELSAT, which is provided only through VSNL.

If an
organiser does not want uplinking to INTELSAT, he need not even approach VSNL.
As a matter of fact, major networks in United States have their own satellites.

149.
On the other hand, the submissions on behalf of the Doordarshan and the
Ministry of Information and Broadcasting are the following:

(i)
The CAB or for that matter BCCI did not even apply for a licence under the
proviso to Section 4(1) nor was such li- cence granted by the appropriate
authority at any time or on any occasion. The grant of permission by other departments
including the collection of fees by VSNL does not amount to and cannot take the
place of licence under the proviso to Section 4(1). In the absence of such a
licence, the CAB/BCCI or their agents had no right to telecast or broadcast the
matches from the Indian territory. The argument of implied permission - or the
alternate argument that the authorities were bound to grant such permission -
is misconceived, more par- 196 ticularly, in the absence of even an application
for grant of licence under Section 4 of the Telegraph Act.

(ii)
The Calcutta High Court was not right in giving the directions it did.
Particularly the direction given in its order dated November 12, 1993 to the
Secretary, Ministry of Telecommunications, Government of India, was contrary to
law. While directing the Secretary to consider the facts and circumstances of
the case, the High Court expressly opined that there was already an implied
grant of permis- sion. After expressing the said opinion, the direction to
consider was a mere formality and of little significance.

The
charge of malafides and arbitrary and authoritarian conduct levelled against
Doordarshan and the Ministry of Information and Broadcasting is wholly
unfounded and unsustainable in the facts and circumstances of the case.

In the
absence of a licence under Section 4 of the Telegraph Act, VSNL could not have
granted uplinking facility and it is for that reason that the Department of
Telecommunications wrote its letter dated November 3, 1993 to VSNL.

(iii)
Realising the lack of coordination among the various ministries concerned in
granting permission in such a matter, the Government of India has since taken a
policy decision in the meeting of the Committee of Secretaries held on November
12, 1993. It has been decided that satellite uplinking from the Indian soil
should be within the exclusive competence of the Ministry of Information and
Broadcasting/ Department of Space/Department of Tele- communications and that
similarly the telecast of sports events shall be within the exclusive purview
of the Doordarshan/Ministry of Information and Broadcasting who in turn could
market their rights to other par-ties on occasion in whole or in part. It has
been further decided that in respect of any such event, the organiser shall
contact the specified nodal ministry which in turn will coordinate with all
other concerned departments. In short, what may be called a 'single window
system' has been evolved which is indeed in the interest of organisers of such
events.

(iv)
So far as the contention based upon Article 19(1)(a) is concerned, the
contentions of CAB/BCCI are misleading and over-simplistic. The right
guaranteed by Article 19(1)(a) is not limited to organisers of such sports
events. The said right is guaranteed equally to the broadcaster and the
viewers. Among them, the right of the viewers is the more important one. The
decisions rendered by this court in the matter of freedom of press are not
strictly relevant in the matter of broadcast/telecast. Telecasting a sports event
is distinct from the event itself It is evident that the CAB/ BCCI are seeking
to earn as much as possible by selling the telecasting rights. It is nothing
but commerce and an activity solely relatable to Article 19(1)(g) and not to
Article 19(1)(a). Inviting bids from all over the world and selling the
telecast rights to the highest bidder has nothing to do with Article 19(1)(a).
In any event, the predominant element in such activity is that of business.

The
interest of general public is, therefore, a relevant consideration in such
matters. The public interest demands that foreign agencies should not be freely
permitted to come and set up their telecasting facilities in India in an
unrestricted fashion. The occasion for inviting foreign agencies may possibly
arise only if Doordarshan and AIR refuse to telecast or 197 broadcast the event
which they have never done. The Doordarshan was and is always ready to
undertake the telecasting on reasonable terms but the CAB and BCCI were more
interested in deriving maximum profit from the event.

Doordarshan
cannot certainly compete with foreign agencies who are offering more money not
merely for obtaining the right to telecast these events but with the real and
ultimate object of gaining a foothold in the Indian telecasting scene. Through
these events, the foreign telecasting organisations, particularly ESPN, are
seeking entry into Indian market and it is for this reason that they are
prepared to pay more. Their interest is something more than mere commercial.

(v)The
present situation is that the Doordarshan and AIR has got all the facilities of
telecasting and broadcasting the events in India. They have been doing it for
over the last several decades and they have the necessary infrastructure.

The
Doordarshan is taking all steps for updating its equipment and for training its
technicians to handle the latest equipment. It is also entering into tic,-ups
with certain foreign agencies for the purpose. They have always been prepared
for any reasonable terms. Both Doordarshan and AIR are agencies of the State.
Until recently, 97% of the telecasts made by Doordarshan did not earn any
income.

They
only involved expense. Its income was derived mainly from the remaining three
per cent of its activities including sports events like cricket. Recently,
there has been a slight change in policy but the picture largely remains the
same. There is nothing illegitimate or unreasonable in Doordarshan seeking to
earn some money in the matter of telecast of such events.

(vi)The
very nature of television media is such that it necessarily involves the
marshaling of the resource for the greatest public good. The state monopoly is
created as a device to use the resource for public good. It is not violative of
the right of free speech so long as the paramount interest of the viewers is
subserved and access to media is governed by the 'fairness doctrine'. Section 4
of the Telegraph Act cannot be faulted on any ground. Indeed, in none of the
petitions filed by the CAB/BCCI has the validity of the monopoly of Doordarshan
questioned. If the argument of the CAB/BCCI is accepted it would mean a
proliferation of television stations and telecasting facilities by all and
sundry, both domestic and foreign, which would not be in the interest of the
country. Indeed, the other side has not placed any material to show that such
free grant of licences would serve the public interest.

(vii)Section
4 of the Telegraph Act is in no way inconsistent with the monopoly of
Doordarshan/AIR. Indeed, it supports it. The American decisions are not really
relevant to the Indian context. The availability of more or unlimited number of
frequencies or channels is no ground to permit free and unrestricted import,
establishment and operation of Radio/Television stations, earth stations or
other such equipment.

150.
In the light of the contentions advanced, the following questions arise for
consideration:

1.(a)
Whether a licence or permission can be deemed to have been granted to CAB under
the proviso to Section 4 of the Indian Telegraph Act, 1885 for telecasting the
Hero Cup Tournament matches played 198 in November, 1993?

(b) If
it is found that there was no such permission, was it open to the Calcutta High
Court to give the impugned directions?

(c)
Whether the charge of malafides and arbitrary and authoritarian conduct
attributed to Doordarshan by CAB justified?

2.(a)
Whether organising a cricket match or other sports event a form of speech and
expression guaranteed by Article 19(1)(a) of the Constitution? (b) If the
question in clause (a) is answered in the affirmative, the further question is
whether the right to telecast such event is also included within the right of
free speech and expression? (c) Whether the organiser of such sports events can
claim the right to sell the telecasting rights of such events to such agency as
they think proper and whether they have the right to compel the government to
issue all requisite permissions, licences and facilities to enable such agency
to telecast the events from the Indian soil? Does the right in Article 19(1)(a)
take in all such rights? (d) If the organiser of sports does have the rights
mentioned in (c), whether the government is not entitled to impose any
conditions thereon except charging technical fees or service charges, as the
case may be?

3.
Whether the impact of Article 19(1)(a) upon Section 4 of the Telegraph Act is
that. whenever a citizen applies for a licence under the proviso to Section
4(1) it should be granted unless the refusal can be traced to a law within the
meaning of Article 19(2)?

4.
Whether the virtual monopoly existing in favour of Doordarshan in the matter of
telecasting from Indian soil violative of Article 19(1)(a) of the Constitution?

ANSWERS
TO THE QUESTIONS QUESTION NO. 1:

151.
The facts narrated in Part-II show that neither CAB nor BCCI ever applied for a
licence under the first proviso to sub-section (1) of Section 4 of the
Telegraph Act. The permissions obtained from other departments, viz., from the
Ministry of Human Resource, VSNL, Ministry of Home Affairs, Ministry of Finance
or the Central Board of Excise and Customs cannot take the place of licence
under Section 4(1). Indeed, this fact was recognised by the Division Bench of
the Calcutta High Court and it is for the said reason that it directed the
Secretary to the Telecom Department to decide the question whether such licence
should be granted to CAB in connection with Hero Cup matches. But while
directing the Secretary to consider the said question, it chose to make certain
observations which had the effect of practically foreclosing the issue before
the Secretary. The Division Bench observed that the Sec- retary should proceed
on the assumption that there was an implied grant of permission. As a matter of
fact, the Secretary was directed to grant the licence in so many words, thus
leaving no discretion in him to examine the matter in accordance with law. It
became an empty formality. I am of the opinion that while asking the Secre-
tary to decide the issue under proviso to 199 Section 4(1), his discretion and
judgment could not have been restricted or forestalled in the above manner. Be
that as it may, in pursuance of the said directions and the directions of this
Court - the Secretary passed certain orders, the legality of which has now become
academic for the reason that both the events, viz., the Hero Cup matches as
well as the recent international matches (October- December, 1994) are over.
The only thing that remains to be considered is whether the charge of malafides
and arbitrary and authoritarian conducted attributed to the Doordarshan by CAB
and BCCI is justified. Firstly neither the CAB nor its foreign agent had
applied for or obtained the licence/permission under Section 4(1). The
permissions granted by other departments are no substitute for the licence
under the proviso to Section 4(1). 'Mere is nothing to show that seizure of
imported equipment by customs authorities was at the instance of Doordarshan;
it appears to be for non-compliance with the requirements subject to which permission
to import was granted. Secondly, this issue, in my opinion, cannot be examined
in isolation but must be judged in the light of the entire relevant context.

The
Doordarshan did enjoy monopoly of telecasting in India which is the product of
and appears to be sustained by Section 4(1) of the Telegraph Act. There was no
occasion when a foreign agency was allowed into India without the consent of or
without reference to Doordarshan to telecast such events. All these years, it
was Doordarshan which was telecasting these matches. On one previous occasion,
a foreign agency was allowed but that was by the Doordarshan itself or at any
rate with the consent of and in cooperation with the Doordarshan. It is for
this reason that the Doordarshan was asserting its exclusive right to telecast
the event taking place on Indian soil and was not prepared to purchase the said
right from a foreign agency to whom the CAB and BCCI sold all their rights. It
is also worth noticing that neither CAB nor BCCI or for that matter any other
sports organisation had ever before invited a foreign agency to telecast or
broadcast their events - at any rate, not without the consent of Doordarshan.
The agreement with TWI entered into by CAB and the agreement with ESPN entered
into by the BCCI were unusual and new developments for all concerned. Like the
bureaucracy everywhere, the Indian bureaucracy is also perhaps slow in
adjusting to the emerging realities, more particularly when they see a threat
to their power and authority in such developments. In the circumstances, their
objection to a foreign agency coming in and telecasting such events without
even obtaining a licence under the proviso to Section 4(1) of the Telegraph Act
cannot be termed malafide or arbitrary. So far as the charge of authoritarianism
is concerned, it is equally unsustainable for the reason that the CAB/ BCCI had
no legal right nor any justification in insisting upon telecasting their events
through foreign agencies without even applying for and/or obtaining a licence required
by law. The correspondence between them shows that each was trying to get the
better of the other; it was like a game of fencing.

In my
opinion, therefore, the charge of malafides or for that matter, the charge of
arbitrary or authoritarian conduct levelled against the Doordarshan and/or
other governmental authorities is unacceptable in the facts and circumstances
of this case.

QUESTION
NOS. 2.3 AND 4:

152.
The contentions of Sri Kapil Sibal, 200 learned counsel for the BCCI/CAB have
been set out hereinbefore. What do they really mean and imply? It is this: the
game of cricket provides entertainment to public at large. The entertainment is
organised and provided by the petitioners. Providing entertainment is a form of
expression and, therefore, covered by Article 19(1)(a) of the Constitution.
Except in accordance with a law made in terms of clause (2) of Article 19, no
restriction can be placed thereon. The organiser of the game has the right to
telecast and broadcast the game. None can stop it - neither the Doordarshan nor
AIR. The monopoly in favour of Doordarshan and AIR is inconsistent with Article
19(1)(a) as well as Section 4 of the Telegraph Act. If Section 4(1) is
construed as conferring or affirming such monopoly, it is void and unconstitutional
may fall foul of Article 19(1)(a).

The
first proviso to Section 4(1) is bad for the added reason that it or the Act
does not furnish any guidance in the matter of exercise of discretion conferred
upon the Central Government thereunder. The organiser of the Same is free to
choose such agency as he thinks appropriate for telecasting and broadcasting
the game - whether domestic or foreign - and if the organiser asks for a
licence under the proviso to Section 4(1) for importing and operating the earth
station or other equipment for the purpose, it must be granted. No conditions
can be placed while granting such permits except collection of technical fees.
This in sub- stance is the contention. It must be said at once that this may
indeed be the first decision in this country, when such an argument is being
addressed, though such arguments were raised in certain European courts and the
European Court of Human Rights, with varying results as we shall indicate in a
little while.

153.
There may be no difficulty in agreeing that a game of cricket like any other
sports event provides entertainment - and entertainment is a facet, a part, of
free speech. [See Burstyn v. Wilson (96 L.Ed.1098)], subject to the caveat that
where speech and conduct are joined in a single course of action, the free
speech values must be balanced against competing societal interests. [Los Angeles v. Preferred Communications (1986 -
476 U.S.488 = 90 L.Ed.2d.480)]. It attracts a large audience. But the question
is whether the organiser of the event can say that his freedom of expression
takes in the right to telecast it from the Indian soil without any restrictions
or regulations. The argument really means this, I have a right to propagate my
expression, viz., the game, by such means as I think appropriate, I may choose
to have a television station of my own or I may invite a foreign agency to do
the job. Whatever I wish, the State must provide to enable me to propagate my
game. I may make money in the process but that is immaterial'. In effect, this
is an assertion of an absolute and unrestricted right to establish private
radio and television stations, since there is no distinction in principle
between having a mobile earth station (which beams its programmes to a
satellite via VSNL or directly to another satellite which in turn beams it back
to earth) and a stationary television station. Similarly, there is no
distinction in law between a permanent telecasting facility and a facility for
a given occasion. Question is, is such a stand acceptable within the framework
of our Constitution? (The question relating to interpretation of Section 4(1),
1 will deal with it separately.) I may clarify that I am concerned herein with
'live telecast' which requires the telecast equipment to be placed at or near
the field where the 201 event is taking place, i.e., telecasting from the Indian territory. This clarification is appended in
view of the contention urged that nothing prevents the organisers - 1 or for
that matter, anybody - from video recording the event and then take the video
cassette out of this country and telecast it from outside stations.
Undoubtedly, they can do so. Only thing is that it will not be a live telecast
and it would also not be a telecast from the Indian soil.

154.
Article 19(1)(a) declares that all citizens shall have the right of freedom of
speech and expression. Clause (2) of Article 19, at the same time, provides
that nothing in sub-clause (1) of clause (1) shall affect the operation of any
existing law or prevent the State from making any law, insofar as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with the foreign States, public
order, decency or morality or in relation to contempt of court, defamation or
incitement of an offence. The grounds upon which reasonable restrictions can be
placed upon the freedom of speech and expression are designed firstly to ensure
that the said right is not exercised in such a manner as to threaten the
sovereignty and integrity of India, security of the State, friendly relations
with the foreign States, public order, decency or morality. Similarly, the said
right cannot be so exercised as to amount to contempt of court, defamation or
incitement of an offence. Existing laws providing such restrictions are saved
and the State is free to make laws in future imposing such restrictions. The
grounds aforesaid are conceived in the interest of ensuring and maintaining
conditions in which the said right can meaningfully ad peacefully be exercised
by the citizens of this country.

155.
The freedom of speech and expression is a right given to every citizen of this
country and not merely to a few.

No one
can exercise his right of speech in such a manner as to violate another man's
right of speech. One man's right to speak ends where the other man's right to
speak begins.

Indeed,
it may be the duty of the State to ensure that this right is available to all
in equal measure and that it is not hijacked by a few to the detriment of the
rest. This obligation flows from the preamble to our Constitution, which seeks
to secure. to all its citizens liberty of thought, expression, belief and
worship. State being a product of the Constitution is as much committed to this
goal as any citizen of this country. Indeed, this obliga- tion also flows from
the injunction in Article 14 that "the State shall not deny to any person
equality before the law" and the direction in Article 38(2) to the effect:
"the State, shall, in particular - endeavour to eliminate inequalities in
status, facilities and opportunities, not only amongst individuals but also
amongst groups of people........ Under our Constitutional scheme, the State is
not merely under an obligation to respect the fundamental rights guaranteed by
Part-III but under an equal obligation to ensure conditions in which those
rights can be meaningfully and effectively enjoyed by one and all.

156.The
fundamental significance of this freedom has been stressed by this Court In a
large number of decisions and it is unnecessary to burden this judgment with
those decisions.

Freedom
of speech and expression, it has been held repeatedly, is 202 basic to and
indivisible from a democratic polity. It encompasses freedom of press. It
includes right to impart and receive information. The question now in issue is:
does it include the freedom to broadcast and telecast one's views, ideas and
opinions and whether, if one wishes to do so, is the State bound to provide all
necessary licences, permits and facilities therefor? This requires an
examination of the history of broadcasting and telecasting in this country as
well as in certain leading democracies in the world. In this judgment, the
expression "broadcasting media" wherever used denotes the electronic
media of radio and television now operated by AIR and Doordarshan - and not any
other radio/TV services INDIA:

157.
Though several countries have enacted laws on the subject of broadcasting, India has not. The Indian Telegraph Act,
enacted in 1885 (as amended from time to time) is the only enactment relevant
in this behalf Clause (1) of Section 3 defines the expression
"telegraph" in the following words:

""Telegraph"
means any appliance, instrument material or apparatus used or capable of use
for transmission or reception of signs signals,writing, images and sounds or
intelligence of any nature by wire, visual or other electromagnetic emissions,
Radio waves or Hertzian waves, galvanic, electric or magnetic means.

Explanation.-
"Radio waves" or "Hertzian waves" means electromagnetic
waves of frequencies lower than 3,000 giga-cycles per second propagated in
space without artificial guide.

158.
Sub-section (1) of Section 4 which occurs in Part-11 entitled "Privileges
and Powers of the Government" confers the exclusive privilege of
establishing, maintaining and working telegraphs In India upon the Central
Government. At the same time, the first proviso to sub-section empowers the
Central Government itself to grant a licence on such conditions and in
consideration of such payments as it thinks fit, to establish, maintain or work
a telegraph within any part of India. Section
4 may be set out for ready reference:

"4.(1)
Within India the Central Government shall have
the exclusive privilege of establishing, maintaining and working telegraphs:

Provided
that the Central Government may grant a licence, on such conditions and in
consideration of such payments as it thinks fit, to any person to establish,
maintain or work a telegraph within any part of India:

Provided
further that the Central Government may, by rules made under this Act and
published in the Official Gazette, permit, subject to such restrictions and
conditions as it thinks fit, the establishment, maintenance and working- (a) of
wireless telegraphs on ships within Indian territorial waters and on aircraft
within or above India, or Indian territorial waters, and (b) of telegraphs
other Om wireless telegraphs within any part of India.

(2)
The Central Government may, by notification in the Official Gazette, delegate
to the telegraph authority all or any of its powers under the first proviso to
sub-section (1).

The
exercise by the telegraph author- 203 ity of any power so delegated shall be
subject to such restrictions and conditions the Central Government may, by the
notification, think fit to impose." 159. The arguments before us have
proceeded on the footing that the radio broadcasting and telecasting fall
within the definition of "telegraph", which means that according to
Section 4, the Central Government has the exclusive privilege and right of
establishing, maintaining and working the radio and television stations and/or
other equipment meant for the said purpose. The power to grant licence to a
third party for a similar purpose is also vested in the Central Government
itself the monopoly-holder. The first proviso says that the Central Government
may grant such a licence and if it chooses to grant, it can impose such
conditions and stipulate such payments therefor as it thinks fit. The section
is absolute in terms and as rightly pointed out by the petitioners' counsel, it
does not provide any guidance in the matter of grant of licence, viz., in which
matters the Central Government shall grant the licence and in which matters
refuse. The provision must, however, be understood in the context of and having
regard to the times in which it was enacted.

160.
In Life Insurance Corporation of India etc. v. Manubhai D.Shah (1992 (3)
S.C.C.637), Ahmadl,J. (as the learned Chief Justice then was) held that the
refusal of Doordarshan to telecast a film "Beyond Genocide" on Bhopal
gas disaster (which film was certified by censors and had also received the
Golden Lotus Award) on the ground of lacking moderation, restraint, fairness
and balance is bad. The court noted that while the Doordarshan conceded that
the film depicted the events faithfully, it failed to point out in what
respects it lacked in moderation etc. Merely because it was critical of government,
it was held, Doordarshan cannot refuse to telecast it. It was pointed out
pertinently that the refusal to telecast was not based upon the ground that the
list of award-winning films was long and that having regard to inter se
priorities among them, it was not possible to telecast the film or that the
film was not consistent with the accepted norms evolved by Doordarshan.

In
this connection, the learned Judge, speaking for the Bench, observed:

"The
words "freedom of speech and expression" must, therefore, be broadly
construed to include the freedom to circulate one's views by words of mouth or
in writing or through audio-visual instrumentalities. 11, therefore, includes
the right to propagate one's views through the print media or through any other
communication channel e.g. The radio and the television. Every citizen of this
free country, therefore, has the right to air his or her views through the
printing and/or the electronic media subject of course to permissible
restrictions imposed under Article 19(2) of the Constitution. The print media,
public educators, so VItal to the growth of a healthy democracy. Freedom to air
one's views is the lifeline of any democratic institution and any attempt to
stifle, suffocate or gag this right would sound a death-knell to de- mocracy
and would help usher in autocracy or dictatorship. It cannot be gainsaid that
modern communication mediums advance public interest by informing the public of
the events and developments that have taken place and thereby educating the
voters, a role considered significant for the vibrant functioning of a
democracy. Therefore, in any set-up, more so in a democratic set-up like ours,
dissemi- 204 nation of news and views for popular con- sumption is a must and
any attempt to deny the same must be frowned upon unless it falls within the
mischief of Article 19(2) of the Constitution. It follows that a citizen for
propagation of his or her ideas has a right to publish for circulation his
views in periodicals, magazines and journals or through the electronic media
since it is well known that these communication channels are great purveyors of
news and views and make consid- erable impact on the minds of the readers and
viewers and are known to mould public opinion on vital issues of national
importance. Once it is conceded, and it cannot indeed be disputed, that freedom
of speech and expression includes freedom of circulation and propagation of
ideas, there can be no doubt that the right extends to the citizen being
permitted to use the media to answer the criticism levelled against the view
propagated by him. Every free citizen has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, except to the extent
permitted by Article 19(2), would be an inroad on his freedom. This freedom
must, however, be exercised with circumspection and care must be taken not to
trench on the rights of other citizens or to jeopardise public interest. It is
manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject
to' imposition of reasonable restrictions in the interest of, amongst others,
public order, decency or morality or in relation to defamation or incitement to
an offence. It is, therefore, obvious that subject to reasonable restrictions
placed under Article 19(2) a citizen has a right to publish, circulate and
disseminate his views and any attempt to thwart or deny the same would offend
Article 19(1)(a)." (Emphasis added) 161. Similarly, it was held in Odyssey
Communications Pvt.Ltd. v. Lokvidayan Sanghatana & Ors. (1988 Suppl.(1)
S.C.R.486):

"It
can no longer be disputed that the right of a citizen to exhibit films on the
Doordarshan subject to the terms and con- ditions to be imposed by the
Doordarshan is a part of the fundamental right of freedom of expression
guaranteed under Article 19(1)(a) of the Constitution of India which can be
curtailed only under circumstances which are set out in clause (2) of Article
19 of the Constitution of India. The right is similar to the right of a citizen
to publish his views through any other media such as newspapers, magazines,
advertisement boardings etc. sub- ject to the terms and conditions of the
owners of the media. We hasten to add that what we have observed here does not
mean that a citizen has a fundamental right to establish a private broadcasting
station, or television centre. On this question, we reserve our opinion. It has
to be decided in an appropriate case." The- Court held that since the
Union of India and Doordarshan have failed to produce any material to show that
"the exhibition of the serial was prima facie prejudicial to
community", the refusal cannot be sustained.

162.
Be that as it may, by virtue of Section 4, radio and television have remained a
monopoly of the Central Government Though in the year 1990, Parliament enacted
the 'Prasar Bharati (Broadcasting Corporation of India) Act, 1990, it never
came into force because the Central Gov- ernment did not choose to issue a
notification appointing the date (from which the Act shall come into force) as
contemplated by Section 1(3) of the said Act. Be that as it may, Government
monopoly over broadcasting media is nothing unusual and it is 205 not solely
because of the fact that India was not an independent country, or
a democracy, until 1947-50. Even in well-established democracies, the position
has been the same, to start with, as would be evident from a brief resume of
the broadcasting history in those countries which we may now proceed to
examine. It would help us understand how the freedom of speech and expression
is understood in various democracies with reference to and in the context of
right to broadcast and telecast - compendiously referred to here- inafter as
broadcasting.

Broadcasting
Law in other Countries:

163.
The history of broadcasting in United States
and other European countries has been basically different, perhaps because of
historical factors besides constitutional principles. In the United States, courts have regarded freedom of
speech almost entirely as a liberty against the State, while the constitutional
courts in Europe have looked upon it as a value
which may sometimes compel the government to act to ensure the right.
Constitutions of most of the countries in western Europe, e.g Germany, Italy and France are of post World War-II vintage
whereas the First Amendment to the United States Constitution is more than 200
years old. These modem European Constitutions cast an obligation upon their
governments to promote broadcasting freedom and not merely to refrain from
interfering with it. The Constitution of Germany expressly refers to the right
to broadcast as part of freedom of speech and expression. So far as the United Kingdom is concerned, the development there
has to be understood in the context of its peculiar constitutional history
coupled with the fact that it has no written constitution. Even so, freedom of
thought and expression has been an abiding faith with that nation. It has been
a refuge for non-conformists and radical thinkers all over the world - a fact,
which does not beg any proof And yet broadcasting in all these countries was a
State or a public monopoly to start with. Only much later have these countries
started licensing private broadcasting stations.

The
main catalyst for this development has been Article 10 of the European
Convention on Human Rights which guarantees freedom of expression to all the
citizens of the member countries and refers specifically to radio and
television.

It
says:

"10(1)
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and import information and ideas
without interference by public authority and regardless of frontiers.

This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.

(2)The
exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of na- tional security, territorial integrity or pub-
lic safety, for the prevention of disorder or crime, for the protection of
health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary." (Emphasis
added) More about this provision later.

164.
In the United States, of course, radio and television
have been operated by 206 private undertakings from the very beginning. As
pointed out by the United States Supreme Court in Columbia Broadcasting System
v. Democratic National Committee [(1973) 412 U.S.94 - 36 L.Ed.2d.772], at the
advent of the radio, the government had a choice either to opt for government
monopoly or government control and that it chose the latter.

The
role of the government has been described as one of an overseer" and that
of the licensee as a "public trustee".

The
position obtaining in each country may now be noted briefly.

UNITED
KINGDOM*:

165.
The first licence to operate eight radio stations was granted to British
Broadcasting Company (BBC) in 1922. In 1927, British Broadcasting Company was
replaced by British Broadcasting Corporation. The Sykes Committee, appointed in
1920s, considered the overall state control of radio essential in view of its
influence on public opinion but rejected operation of the medium by the State.
The other committee appointed in 1920s, viz., Crawford Committee, also
recommended that radio should remain a public monopoly in contra-distinction to
the United States system of 'free and uncontrolled
transmission'. It, however, recommended that the government company should be
reorganised as a commission either under *This part of the judgment dealing
with the broadcasting law obtaining in United Kingdom and other European
countries is drawn largely from the Book "Broadcasting Law A Comparative
Study" (1993 Edition) by Eric Barendt, Goodman Professor of Media Law,
University College, London and his article "The influence of the German
and Italian Constitutional courts on their National Broadcasting systems",
published in 'Public Law, Spring 1991'.

a
statute or as a public company limited by guarantee. In 1927, a Royal Charter
was granted with a view to ensure the independence of BBC, which charter has
been renewed from time to time. It prohibits the BBC from expressing its own
opinion on current political and social issues and from receiving revenue from
advertisement or commercial sponsorship. The power to give directions is
reserved to the government. In 1935, the Corporation was licensed by the
Post-Master General to provide a public television service, which was
introduced in the following year. The monopoly of BBC continued till 1954. In
that year, the British Parliament enacted the Television Act, 1954 es-
tablishing the Independent Television Authority (ITA) to provide television
broadcasting services additional to those of the BBC. The function of the
Authority was to enter into contracts with programme companies for the
broadcast of commercial programmes. In 1972, ITA was redesignated as
Independent Broadcasting Authority (IBA). In 1984, IBA acquired powers in
respect of direct broadcasting by satellite.

166.The
Peacock Committee appointed in 1980s to examine the question whether BBC should
be compelled to take adver- tising, rejected the idea but advocated
deregulation of radio and television. The government accepted the proposal and,
accordingly, the Parliament enacted the Broadcasting Act, 1990. Section 1
established the Independent Television Commission (ITC) with effect from January 1, 1991 in the place of IBA and the Cable
Authority. The ITC is vested with the power to licence and regulate non-BBC 207
television services including Channels 3 and 4 and the proposed Channel 5
besides cable and satellite services.

Section
2 requires that the ITC discharge its functions in the manner it considers best
to ensure a wide range of TV programme services and also to ensure that the
programmes are of high quality and cater to a variety of tastes and interests.
In 1991, ITV decided to grant 16 new channels 3 licences to private bodies with
effect from January 1,
1993.

The
allocation was to be made by calling for tenders - the highest bidder getting
it - subject, of course, to the bidder satisfying the qualifying criteria. The
eligibility criteria prescribed guards against granting licences to non- EEC
nationals, political bodies, religious bodies and ad- vertising agencies. It
also guards against concentration of these licences in the hands of few
individuals or bodies.

Sections
6 and 7 impose strict programme controls on the licencees while Sections 8 and
9 regulate the advertisements. The programme controls include political
impartiality, eschewing of excessive violence, due regard for decency and good
taste among others. The programmes should not also offend religious feelings of
any community.

Section
10 provides for government control over licenced services. Section 11 provides
for monitoring by ITC of the programmes broadcast by licenced services. It is
obvious that this Act has no application to BBC, which is governed by the Royal
Charter, as stated hereinabove. The Act has also set up a Radio Authority to
exercise comparable powers over radio services. It is said that this Act
ultimately imposed as many restraints on broadcasters freedom as there were in
force earlier.

FRANCE:

167.
Para II of the Declaration of the Rights of Man adopted by the National
Assembly in 1789** - affirmed in the pre- amble to the Constitution of the
Fifth Republic (1958) and treated as binding on all branches of the government
- guar- antees freedom of dissemination of thought and opinion.

This
provision - the child of the French Revolution - has greatly influenced the
development of broadcasting freedom in that country. Initially, licences were
granted to private radio stations to function along side the public network but
with the out-break of the WorldWar 11, the licences of private broadcasters
were suspended and later revoked. From 1945 to 1982, broadcasting remained a
State monopoly. The government exercised tight control over the radio. An
ordinance issued in 1959 legalised government control. In 1964, public monopoly
was re-affirmed by law.

In
1974, the State Organisation, Office de la radiodiffusion-television Francaise
(ORTF) was divided into seven separate institutions catering to radio and
television broadcasts in the country. This was done with a **Para 11 reads: "XI. The unrestrained com- munication
of thoughts and opinions being one of the most precious rights of man, every
citizen may speak, write and publish freely, provided he is responsible for the
abuse of this liberty in cases determined by law. " At the same time, Para 4 sets out the limitation implicit in all freedoms
comprised in the concept of political liberty. It says: ....... The exercise of
the natural rights of every man has no other limits than those which are
necessary to secure to every other man the free exercise of the same rights;
and these limits are determinable only by the law." 208 view to introduce
competition among the public television companies. The government exercised a
significant degree of control over all these units. No private broadcasting was
allowed since broadcasting services were regarded as essentially public. The
State monopoly in the matter of broadcasting was upheld by Conseil
constitutionnel (Constitutional
Court) in 1978. In
1982, however, a significant change took place. The State recognised the right
of citizens to have a "free and pluralist broadcasting system". Even
so, permission to institute a private broadcasting station was dependent on
prior authorization of the government. This provision was upheld by the Conseil
Constitutionnel as compatible with Para
11 of the Declaration of the Rights of Man, In 1985, the law was amended
providing for private broadcasting and television stations. In 1986, the
government sought to privatise one of the public television channels which
immediately provoked controversy. The Conseil constitutionnel ruled (in 1986)
that principle of pluralism of sources of opinion was one of constitutional
significance, against which the concrete provisions of the proposed Bill must
be assessed II observed that access to a variety of views was necessary for the
ef- fective guarantee of the freedom of speech protected by the Declaration of
the Rights of man. At the same time, it found nothing wrong with the decision
to favour private television but held that it was for the Parliament to
determine the appropriate structure for broadcasting in the light of freedom of
communication and other relevant constitutional values, like public order,
rights of other citizens and pluralism of opinion. The law was accordingly
amended. Wherever private broadcasting is allowed it is governed by a contract
between the applicant and the administrative authority.

GERMANY.

168.
After the occupying authorities withdrew from West Germany in 1949, the pattern that emerged was one of nine regional
public broadcasting organisations. They formed into an association, the
Arbeitsgemeinschaft der offentlich- techtlichen Rundfunkanstalten der
Bundersrepublik Deutschland (ARD), in 1950 and under its auspices the first
public television channel was formed. Article 5 of the Basic Law of 1949
states, "(E)very one shall have the right freely to express and
disseminate his opinion by speech, writing, and pictures and freely to inform
himself from generally accessible sources. Freedom of the press and freedom of
reporting by means of broadcasts and films are guaranteed. There shall be no
censorship." In a decision rendered in 1961, the Federal Constitutional
Court held inter alia that in view of the shortage of frequencies and the heavy
cost involved in establishing a TV station, public broadcasting monopoly is
justifiable, though not constitu- tionally mandatory. It held further that broadcasting,
whether public or private, should not be dominated by State or by commercial
forces and should be open for the transmission of a wide variety of opinion. [(12
BVerfGE 205- 196)]. There was a long battle before private commercial
broadcasting was introduced. Many of the States in West Germany were opposed to private commercial
broadcasting.

The
Constitutional Court ruled in 1981 The Third Television Case - 57 BVer EfG 295)
that private broadcasting was not inconsistent with Article 5 of the Basic Law
but it observed that unlike the press, private 209 broadcasting should not be
left to market forces in the interest of ensuring that a wide variety of voices
enjoy access to it. It recognised that the regulation of private broadcasting
can be different in content from the regulation applying to public
broadcasting. In course of time, private television companies came into
existence but in the beginning they were confined to cable. In the Fourth
Television Case decided in 1986 (73 BVerfGE 118), the court held in the present
circumstances, the principal public service functions of broadcastings are the
responsibility of the public institutions whereas private broadcasters may be
subjected to less onerous programme restrictions. Only after the decision of
the Constitutional
Court in 1987 were
the private companies allocated terrestrial frequencies. It appears that
notwithstanding the establishment of private companies , it is the public
broadcasting companies which dominate the scene and attract more advertisement
revenue.

The
German constitutional court has exercised enormous influence in shaping the
contours of broadcasting law. It has interpreted the broadcasting freedom in a
manner wholly different from the United States Supreme Court casting an
obligation upon the State to act to ensure the right to all citizens.

ITALY:

169.
In Italy too, the broadcasting was under
State control, to start with. In 1944, Radio audizioni Italia (RAI) was created
having a monopoly in broadcasting. It still holds the concession for public
radio and broadcasting. Article 21(1) of the Italian Constitution, 1947
provides that "(E)veryone has the right to express himself freely verbally,
in writing, and by any other means". This provision was relied upon by
potential private broadcasters in support of their claim for setting up private
commercial stations. In a decision rendered in 1960 (Decision 59/60 (1960)
Giurisprudenza Constituzionale 759) the Constitutional Court of Italy upheld
RAI's monopoly with reference to Article 43 of the Constitution which enables
legislation to reserve (or expropriate subject to com- pensation) for the
state, businesses which are concerned with vital public service or are natural
monopolies and which are of pre-eminent public interest. It denied the right of
applicants to establish private radio or television stations. it-opined that
private broadcasting would inevitably be dominated by a few corporations and,
therefore, not in public interest, an aspect which was reaffirmed in a decision
in 1974. (Decision 225/74 (1974) Giurisprudenza Constituzionale 1775). It held
that broadcasting provides an essential service in a democratic society and
could legitimately be reserved for a public institution, provided certain
conditions were met. In particular, it said that radio and television should be
put under parliamentary, and not executive control to ensure their independence
and that rules should be drawn up to guarantee the access of significant
political and social groups. Accordingly, the Parliament enacted the Legge in
April, 1975 which provided for a greater control by a Parliamentary Commission
over the programmes and their content. In 1976, the Constitutional Court ruled (Decision 202/76 (1976)
Giurisprudenza Constituzionale 1276) that while at the national level, the
monopoly of RAI is valid, at the local level, it is not, since at the local
level there is no danger of private monopolies or oligopolies emerging a hope
belied by subsequent developments.

210
This ambiguous decision resulted in establishment of a large number of private
radio stations in Italy notwithstanding the re-affirmation
of RAI's national monopoly in 1981 by the court. One of the major rather the
largest - private television and radio networks which thus came into existence
is the $7 billion Fininvest Company, controlled by Silvio Berlusconi (the
Ex-Prime Minister of Italy, who resigned in December, 1994). It owns three
major TV networks in Italy.

This
development prompted the Constitutional
Court, in 1988, to
call for a prompt and comprehensive regulation of private broadcasting
containing adequate anti-trust and other anti- monopolistic provisions to
safeguard pluralism.

Accordingly,
a law was made in 1990 which devised a system for licensing private radio and
television stations.

AUSTRIA:

170.
Broadcasting has been a State monopoly in Austria throughout. This monopoly was challenged -as inconsistent with Article
IO of the European Convention before the Austrian Constitutional Court which repelled the attack with
reference to clause (2) of Article 10. It held that inasmuch as a law made by
the State, viz., Constitutional Broadcasting Law had introduced a licencing
system within the meaning of the last sentence in Article 10(1) of the
Convention and since the said system was intended to secure objectivity and
diversity of opinions, no further need be done. It held that the Austrian
Broadcasting Corporation with the status of an autonomous public law
corporation is a sufficient compliance not only with the national laws but also
with Article 10 of the Convention and that granting licence to every applicant
would defear the objectives of pluralism, diversity of views and range of opinions
underlying the said Austrian law. Several individuals and organisations, who
were refused television/radio licences, lodged complaints with the European
Human Rights Commission, which referred the matter for the opinion of the
European Human Rights Court [EHRC] (at Strasbourg). The court held that the
refusal to consider the applications for licence amounted to a violation of
Article 10 (Informationsverein Lentia & Ors. v. Austria - 15 Human Rights
law Journal 31 - judgment dated 24th November, 1993). The reasoning of the
Court is to be found in paragraphs 38 and 39 which read thus:

"38.
The Court has frequently stressed the fundamental role of freedom of expression
in a democratic society, in particular where, through the press, it serves to
impart information and ideas of general interest, which the public is moreover
entitled to receive (see, for example, mutatis mutandis, the Observer and
Guardian v. the United Kingdom judgment of 26 November 1991, Series A no.216,
pp. 29-30, $59 - 13 HRLJ 16 (1992)).

Such
an undertaking cannot be successfully accomplished unless it is grounded in the
principle of pluralism, of which the State is the ultimate guarantor. This
observation is especially valid in relation to audio-visual media, whose
programmes are often broadcast very widely.

39. 0
'all the means of ensuring that these values are respected, a public monopoly
is the one which imposes the greatest restrictions on the freedom of
expression, namely the total impossibility of broadcasting otherwise than through
a national station and, in some cases, to a very limited extent through a local
cable station. The far reaching character of such 211 restrictions means that
they can only be justified where they correspond to a pressing need.

As a
result of the technical progress made over the last decades, justification of
these restrictions can no longer today be found in considerations relating to
the number of frequencies and channels available; the Government accepted this.
Secondly, for the purposes of the present case they have lost much of their
raison d'etre in view of the multiplication of foreign programmes aimed at
Austrian audiences and the decision of the Administrative Court to recognise the lawfulness of their retransmission by
cable (see paragraph 21 above). Finally and above all, it cannot be argued that
there are no equivalent less restrictive solutions; it is sufficient by way of
example to cite the practice of certain countries which either issue licences
subject to specified conditions of variable content or make provision for forms
of private participation in the ac- tivities of the national corporation."
The Court then dealt with the argument that "Austrian market was too small
to sustain a sufficient number of stations to avoid regroupings and the
constitution of the private monopolies" and rejected it in the following
words:

"42.
The court is not persuaded by the Government's argument. Their assertions are
contradicted by the experience of several European States, of a comparable size
of Austria, in which the coexistence of
private and public stations, according to rules which vary from country to
country and accompanied by measures preventing the development of private
monopolies, shows the fears expressed to be groundless." 171. The Court
finally concluded;

"43.
In short, like the Commission, the Court considers that the interferences in
issue were disproportionate to the aim pursued and were, accordingly, not
necessary in a democratic society. There has therefore been a violation of
Article IO." 172. In our opinion, the reasoning of EHRC is unacceptable
for various reasons which we shall set out at the proper stage.

OTHER
WESTERN EUROPEAN COUNTRIES.

173.
In Denmark, private broadcasting was permitted
by Legislation enacted in 1985. In Portugal, private broadcasting was allowed only in 1989, by amending the
Constitution. In Switzerland too, private broadcasting has been
allowed only recently. Private broadcasting is, however, subject to strict
programme control.

UNITED
STATES OF AMERICA:

174.
In the United States, there was no law regulating the
establishment and working of broadcasting companies till 1927. In that year,
Radio Act, 1927 was enacted by Congress creating the Federal Radio Commission
with authority to grant three year licences to operate radio stations on an
assigned frequency. In the year 1934, the Congress enacted the Federal
Communications Act. This Act placed the tele- phone and wireless communications
under one authority, viz., Federal Communications Commission (FCC). The Commission
had the authority to assign frequency for particular areas, to prescribe the
nature of the service to be provided for different types of stations and to
decide licence ap- plications. The only guideline issued to the Commission was
that it should exercise its powers keeping in view the "pub- 212 lic
interest, convenience and necessity".. It is under these guidelines that
the FCC evolved the Fairness Doctrine in 1949. Notwithstanding the First
Amendment, the United States Supreme Court held that the freedom of speech did
not entail a right to broadcast without a licence. It held:

"unlike
other modes of expression, radio inherently is not available to all" vide
N.B.C. v. U.S. [319 US 190 (1943)].

The
Fairness Doctrine was approved by the Supreme Court in Red Lion Broadcasting
Company v. F.C.C. [395 US 367 (1969)].

The
Court observed: "Although broadcasting is clearly a medium affected by a
First Amendment interest, differences in the characteristics of news media
justify differences in the First Amendment standards applied to them Where
there are substantially more individuals who want to broadcast than there are
frequencies to allocate, it is idle lo posit an unbridgeable First Amendment
right to broadcast com- parable to the right of every individual to speak,
write or publish ... those who are licenced stand no better than those to whom
licences are refused A license permits broadcasting, but the licensee has no
constitutional right to be the one who holds the license or to monopolize a
radio frequency to the exclusion of his fellow citizens .... The people as a
whole retain their interest in free speech by radio and their collective right
to have the medium function consistently with the ends and purposes of the
First Amendment. It is the right of the viewers and listeners, not the right of
the broadcasters which is paramount. It is the right of the public to receive
suitable access to social, political, esthetic moral and other ideas and expe-
riences which is crucial here In 1967'70, public broadcasting was established
on a national basis through the institution of the Corporation for Public
Broadcasting (CPB), viz., the Public Broadcasting Service (PBS) for television
and National radio service. The CPB is funded by appropriations made by the Congress.
In 1978, the Supreme Court affirmed in FCC. v. National Citizens Committee for
Broadcasting (436 U.S.775) that:

"in
making [its] licensing decisions between competing applicants, the Commission
has long given "primary significance" to "diversification of
control of the media of mass communications." This policy is consistent
with the statutory scheme and with the First Amendment goal of achieving
"the widest possible dissemination of information from diverse and
antagonistic sources."*** Pe- titioners argue that the regulations are in-
valid because they seriously restrict the opportunities for expression of both
broad- casters and newspapers. But as we stated in Red Lion, "to deny a
station licence because 'the public interest' requires it 'is not a denial of
free speech'." The regulations are a reasonable means of promoting the
public interest in diversified mass communications;

thus
they do not violate the First Amendment rights of those who will be denied
broadcast licenses pursuant to them.

175. It
is significant to notice the statement that "to deny a station licence
because 'the public interest' requires it 'is not a denial of free
speech"' - a holding to which we shall have occasion to advert to later.
Yet another relevant observation of Burger,C.J. is to the following effect:

*** As
far back as 1948, the Court held in US v. Paramount Pictures (92 L. Ed. 126 1)
that no monopoly can be countenanced in the matter of First Amendment rights.

213
"The Commission (F.C.C.) was justified in concluding that the public
interest in providing access lo market place of "ideas and expressions
" would scarcely be served by a system so heavily weighted in favour of
the financially affluent or those with access to wealth........

(Emphasis
added) 176. In 1970s, however, it was argued that programming restraints were
contrary to the First Amendment besides being unproductive. and that
broadcasting licencees should enjoy the same rights as newspaper editors and
owners. In course of time. the government moved towards deregulation of
broadcasting and ultimately in 1987 the Fairness doctrine was repealed by FCC.
An attempt by Congress to restore the said rule by an enactment was vetoed by
the President.

177.
Having examined the systems obtaining in the United States and major west European countries, Eric Barendt says:

"These
developments illustrate the widely divergent approaches to broadcasting
regulation in the United
States and (for the
most part) in Europe. This is partly an aspect of the
more sceptical attitude to government and to administrative regulation which
has prevailed in the USA, at any rate.

in the
last twenty years. The First Amendment has been interpreted as conferring on broadcasters
rights, which have not been derived from the comparable provisions in
continental countries. Another explanation is that in the USA private commercial broadcasting enjoyed for a long
time a de facto monopoly, while in Britain, France, Germany and Italy there was a public monopoly.

It is
interesting that there has been a continuity to US broadcasting law, which
(perhaps sadly) is not found in these European jurisdictions. The Federal
Communications Act has remained in force since its passage in 1934, though it
has been amended on a handful of occasions." (Eric Barendt: Broadcasting
Law - Page31) 178. We may now proceed to examine what does "Broadcasting
freedom" mean and signify? BROADCASTING FREEDOM Meaning and content of.

179.
There is little doubt that broadcasting freedom is implicit in the freedom of
speech and expression. The European Court of Human Rights also has taken the
view that broadcasting like press is covered by Article 10 of the Convention
guaranteeing the right to freedom of expression.

But
the question is what does broadcasting freedom mean? Broadly speaking,
broadcasting freedom can be said to have four facets, (a) freedom of the
broadcaster, (b) freedom of the listeners/viewers to a variety of view and
plurality of opinion, (c) right of the citizens and groups of citizens to have
access to the broadcasting media, and (d) the right to establish private
radio/TV stations. We shall examine them under separate heads.

(a)
FREEDOM OF THE BROADCASTER:

180.
The first facet of the broadcasting freedom is freedom from State or
Governmental control, in particular from the censorship by the Government. As
the Peacock Committee put it, pre-publication censorship has no place in a free
society. Pre-publication censorship is prohibited in Ger- many by Article 5 of
the Basic Law. This principle applies in equal measure both to public and
private broadcasting.

It is,
however, necessary to clarify here that public 214 broadcasting is not to be
equated with State broadcasting.

Both
are distinct. Broadcasting freedom in the case of pub- lic broadcasting means
the composition of these bodies in a manner so as to genuinely guarantee their
independence. In Germany, the Constitutional Court has ruled that freedom from State control requires
the legislature to frame some basic rules to ensure that Government is unable
to exercise any influence over the selection, content or scheduling of
programmes. Laws providing to the contrary were held bad.

Indeed,
the court also enunciated certain guidelines for the composition and selection
of the independent broadcasting authorities on the ground that such a course is
necessary to ensure freedom from Government control. It should be noted that an
unfettered freedom for licensees to select which programmes appear on their
schedule to the complete disregard of the interests of public appears more like
a property right than an attribute of freedom of speech. It is for this reason
that the German constitutional court opined in 1981 (57 BVerfGE 295) and in
1987 (73 BVerfGE II 8) that television and radio is an instrument of freedom
serving the more fundamental freedom of speech in the in- terest of both
broadcasters and the public. The court opined that broadcasting freedom is to
be protected insofar as it's exercise promotes the goals of free speech, i.e.,
an informed democracy and lively discussion of a variety of views. The freedom
of broadcaster cannot be understood as merely an immunity from government
intervention but must be understood as a freedom to safeguard free speech right
of -all the people without being dominated either by the State or any
commercial group. This is also the view taken by the Italian and French courts.

(b)
LISTENERS/VIEWERS RIGHT.

181.
Broadcasting freedom involves and includes the right of the viewers and
listeners who retain their interest in free speech. It is on this basis that
the European courts have taken the view that restraints on freedom of
broadcasters are justifiable on the very ground of free speech. It has been
held that freedom of expression includes the right to receive information and
ideas as well as freedom to impart them. "The free speech interests of
viewers and listeners in exposure to a wide variety of material can best be
safe- guarded by the imposition of programme standards, limiting the freedom of
radio and television companies. What is important according to this perspective
is that the broadcasting institutions are free to discharge their
responsibilities of providing the public with a balanced range of programmes
and a variety of views. These free speech goals require positive legislative
provision to prevent the domination of the broadcasting authorities by the
government or by private corporations and advertisers, and perhaps for securing
impartiality........

182.
The Fairness Doctrine evolved by FCC and approved by the United States Supreme
Court in Red Lion protected the interest of persons by providing a right of
reply to personal attacks. But difficulties have arisen in the matter of
enforcing the listeners'/viewers' rights through courts.

(c)
ACCESS TO BROADCASTING:

183.
The third facet of broadcasting freedom is the freedom of individuals and
groups of individuals to have access to broadcasting media to express their
views.

215
The first argument in support of this theory is that public is entitled to hear
range of opinions held by different groups so that it can make sensible choices
on political and social issues. In particular, these views should be exposed on
television, the most important contemporary medium. It is indeed the interest
of audience that justified the imposition of impartiality rules and positive
programme standards upon the broadcasters. The theoretical foundation for the
claim for access to broadcasting is that freedom of speech means the freedom to
communicate effectively to a mass audience which means through mass media. This
is also the view taken by our court as pointed out supra.

184.
An important decision on this as'pect is that of the United States Supreme
Court in Columbia Broadcasting System v. Democratic National Committee [412 US
94 (1973)]. The CBS denied to Democrats and a group campaigning for peace in Vietnam any advertising time to comment
upon contemporary political issues. Its refusal was upheld by the FCC, but the
District of Columbia Circuit Court of Appeals ruled that an absolute ban on short
pre-paid editorial advertisements infringed the First Amendment and constituted
impermissible discrimination. The Supreme Court, however, allowed the plea of
CBS holding that recognition of a right of access of citizens and groups would
be inconsistent with the broadcasters' freedom. They observed that if such
right were to be recognised, wealthy individuals and pressure groups would have
greater opportunities to purchase advertising time. It rejected the "view
that every potential speaker is 'the best judge of what the listening public
ought to hear ". (Burger,C.J.) Some Judges expressed the opinion that the
broadcaster enjoyed the same First Amendment rights as the newspapers whereas
the minority represented by Brennan and Marshall,JJ. was of the view that
freedom of groups and individuals to effective expression justified recognition
of some access rights to radio and television.

185.
It appears that this aspect has been debated more intensively in Italy. The Italian constitutional court
held that the monopoly of RAI can be justified only on certain conditions, one
of them being that access must be allowed so far as possible to the political,
religious and social groups, representing various strands of opinion in
society.

It
opined that statutory provision for access was required by Article 21 of the
Constitution guaranteeing freedom of expression. The Italian courts viewed
access as a goal or a policy rather than a matter- of fundamental right while
at the same time protecting the individual's right of reply.

On
this aspect, Barendt says: There are also practical objections to access
rights. It may be very difficult to decide, for example, which group are to be
given access, and when and how often such programmes are shown. There is a
danger some groups will be unduly privileged........

(d)THE
RIGHTS TO ESTABLISH PRIVATE BROADCASTING STATIONS:

186.
The French Broadcasting Laws of 1982 and 1989 limit the right of citizens to
establish private broadcasting stations in the light of the necessity to respect
individual rights, to safeguard pluralism of opinion and to protect public
interests such as national security and public order. No private radio or
television channel or sta- 216 tion can be established without prior
authorisation from the regulatory body, Conseil superieur de l'audiovisuel. In Britain, the ITC and the Radio Authority
must grant the necessary licence for establishing a private television or radio
station. In none of the European countries is there an unregulated right to
establish private radio/television station. It is governed by law. Even in United States, it requires a licence from FCC.

187.
Let us examine the position obtaining in Italy and Germany where constitutional provisions
corresponding to Article 19(1)(a) - indeed more explicit in the case of Germany - obtain. Notwithstanding Article
21, referred to hereinbefore, the Italian Constitutional Court continues to hold that public monopoly of
broadcasting is justified, atleast at national level till adequate anti-trust
laws are enacted to prevent the development of private media oli- gopolies. In
fact, this principle has been applied in the case of local broadcasting and
private broadcasting allowed at local level. The Italian Constitutional Court
is of the view that Article 21 of the Italian Constitution does no doubt confer
right to speak freely but this right is to be exercised by "using means
already at one's disposal, not a right to use public property, such as the
airwaves ". The analogy with the right to establish private schools was
held to be a weak one and rejected by the Constitutional Court.

More
particularly, it is of the view that it is impossible to justify recognition of
a right which only a handful of individuals and media companies can enjoy in
practice.

188.
In Germany too, the Constitutional Court has not recognised a right in the
citizens to establish private television/radio stations at their choice. The
question was left open in what is called the Third Television case. This
question has, however, lost its significance in view of the laws made in 1980s
permitting private broadcasting. What is relevant is that even after the
enactment of the said laws, the Constitutional Court held in Sixth Television case (decided in 1991) that
establishment of private broadcasting stations is not a matter of right but a
matter for the State (legislature) to decide. If the State, legislation does
permit such private broadcasting, it has been held at the same time, it cannot
impose onerous programme and advertising restrictions upon them so as to
imperil their existence.

189.
So far as the United
States is
concerned,where licencing of private broadcasting stations has been in vogue
since the very beginning, the Supreme Court said in C.B.S. v. Democratic
Committee [36 L.Ed.2d.772 (1973)] that "(B)ecause the broadcast media
utilize a valuable and lim- ited public resource, there is also present an
unusual order of First Amendment values". It then affirmed the holding in
Red Lion that "no one has a First Amendment right to a license or to
monopolize a radio frequency; to deny a station license because 'the public
interest' requires it 'is not a denial of free speech ... ****. The **** It is
true that reference to "the public interest" in the above extract
must be under- stood in the light of the guidance provided to F.C.C., which
inter alia directs the F.C.C. to perform its functions consistent with public
interest, the fact yet remains that even the guidance so provided was
understood to be within the ambit of First Amendment and consistent with the
free speech right guaran- teed by it. It was held in National Broad- casting
Company v. United
States (1943 319 U.S. 190) that the guidance provided to F.C.C. to
exercise its powers "as public convenience, interest or necessity
requires" did not violate the First Amendment.

217 court
also affirmed that "it is idle to posit an unabridgeable First Amendment
right to broadcast comparable to the right of every individual to speak, write
or pub- lish." It is relevant to mention here that the distinction made
between the Press and the broadcasting media vis-a-vis the First Amendment has
been justified by an American jurist Bollinger as based on First Amendment
values and not on notions of expediency. He says that in "permitting
different treatment of the two institutions...... (the) Court has imposed a
compromise - a compromise, however, not based on notions of expediency, but
rather on a reasoned and principled accommodation of competing First Amendment
val- ues". [75 Michigan law Review 1, 26-36 (1976) quoted in
"Constitutional Law" by Stone, Seidman and others (Second Edition) at
1427-28].

190.
It is true that with the advances in technology, the argument of few or limited
number of frequencies has become weak. Now, it is claimed that an unlimited
number of frequencies are available. We shall assume that it is so.

Yet
the fact remains that airwaves are public property that they are to be utilised
to the greatest public good; that they cannot be allowed to be monopolised or
hijacked by a few privileged persons or groups; that granting license to
everyone who asks for it would reduce the right to nothing and that such a
licensing system would end up in creation of oligopolies as the experience in
Italy has shown - where the limited experiment of permitting private
broadcasting at the local level though not at the national level, has resulted
in creation of giant media empires and media magnates, a development not
conducive to free speech right of the citizens. It would be instructive to note
the lament of the United States Supreme Court regarding the deleterious effect
the emergence of media empires had on the freedom of Press in that country. In
Miami Herald Publishing Company v. Tor- nillo (1974 - 418 U.S. 24 1), the Court
said:

"Access
advocates submit that .... the press of today is in reality very different from
that known in the early years of our national existence.....

The
elimination of competing newspapers in most of our large cities, and the
concentration of control of media that results from the only newspaper's being
owned by the same interests which own a television station and a radio station,
are important components of this trend towards concentration of control of
outlets to inform the public.

The
result of these vast changes has been to place in a few hands the power to
inform the American people and shape public opinion.

Much
of the editorial opinion and commentary that is printed is that of syndicated
columnists distributed nationwide and, as a result, we are told, on national and
world issues there tends to be a homogeneity of editorial opinion, commentary,
and interpretive analysis. The abuses of bias and manipulative reportage are,
likewise, said to be the result of the vast accumulations of unreviewable power
in the modem media empires.

In
effect, it is claimed, the public has lost any ability to respond or to
contribute in a meaningful way to the debate on issues....

The
obvious solution, which was available to dissidents at an earlier time when
entry into publishing was relatively inexpensive, today would be to have
additional newspapers. But the same economic factors which have caused the
disappearance of vast numbers of metropoli- 218 tan newspapers, have made entry
into the market place of ideas served by the print media almost impossible. It
is urged that the claim of newspapers to be "surrogates for the
public" carries with it a concomitant fiduciary obligation to account for
that stewardship. From this premise it is reasoned that the only effective way
to insure fairness and accuracy and to provide for some accountability is for
government to take affirmative action. The First Amendment interest of the
public in being informed is said to be in peril because the "marketplace
of ideas " is today a monopoly controlled by the owners of the
market........

(Emphasis
added) Of course, there is another side to this picture: the media gaints in United States are so powerful that Government
cannot always manipulate them - as was proved in the Pentagon Papers' case [New
York Times v.United States - (1971) 403 U.S.713)] and in the case of
President's Claim of Privilege [United States v. Nixon - (1974) 418 U.S.683)].

These
considerations - all of them emphasised by Consti- tutional Courts of United
States and major west-European countries - furnish valid grounds against
reading into Article 19(1)(a) a right to establish private broadcasting
stations, whether permanent or temporary, stationary or mobile. Same holding
holds good for earth stations and other telecasting equipment which the
petitioners want to bring in through their chosen agencies. As explained
hereinbefore, there is no distinction in principle between a regular TV station
and an earth station or other telecasting facility. More about this aspect
later.

191.
Having noticed the judicial wisdom of the Constitutional Courts in leading
democracies, we may turn to the issues arising herein.

The
Nature of grounds specified in Article 19(2) of the Constitution 192. A look at
the grounds in clause (2) of Article 19, in the interests of which a law can be
made placing reasonable restrictions upon the freedom of speech and expression
goes to show that they are all conceived in the national interest as well as in
the interest of society.

The
first set of grounds, viz., the sovereignty and in- tegrity of India, the security of the State,
friendly relations with foreign States and public order are grounds referable
to national interest whereas the second set of grounds, viz., decency,
morality, contempt of court, defamation and incitement to offence are conceived
in the interest of society. The inter-connection and the inter- dependence of
freedom of speech and the stability of society is undeniable. They indeed
contribute to and promote each other. Freedom of speech and expression in a
democracy ensures that the change desired by the people, whether in political,
economic or social sphere, is brought about peacefully and through law. That
change desired by the people can be brought about in an orderly, legal and
peaceful manner is by itself an assurance of stability and an insurance against
violent upheavals which are the hall- mark of societies ruled by dictatorships,
which do not permit this freedom. The stability of, say, the British nation and
the periodic convulsions witnessed in the dictatorships around the world is
ample proof of this truism. The converse is equally true. The more stable the
society is, the more scope, it provides for exercise of right of free speech
and expression. A society which feels secure can and does permit a greater
latitude than a society whose stability is in 219 constant peril. As observed
by Lord Sumner in Bowman v. Secular Society Ltd. (1917 A.C.406):

"The
words, as well as the acts, which tend to endanger society differ from time to
time in proportion as society is stable or insecure in fact, or is believed by
its reasonable members to be open to assault. In the present day meetings or
processions are held lawful which a hundred and fifty' years ago would have
been deemed seditious, and this is not because the law is weaker or has
changed, but because, the times having changed, society is stronger than
before.....

\.
After all, the question whether a given opinion is a danger to society is a
question of the times and is a question of fact. I desire to say nothing that
would limit the right of society to protect itself by process of law from the
dangers of the movement, whatever that right may be, but only to say that,
experience having proved dangers once thought real to be now negligible, and
dangers once very possibly imminent to have now passed away, there is nothing
in the general rules as to blasphemy and irreligion .... which prevents us from
varying their application to the particular circumstances of our time in
accordance with that experience.

193.
It is for this reason that our founding fathers while guaranteeing the freedom
of speech and expression provided simultaneously that the said right cannot be
so exercised as to endanger the interest of the nation or the interest of the
society, the case may be. This is not merely in the interest of nation and
society but equally in the interest of the freedom of speech and expression
itself, the reason being the mutual relevance and inter-dependence aforesaid.

194.
Reference may also be made in this connection to the decision of the United
States Supreme Court in F.C.C. v.

National
Citizens Committee for Broadcasting [(1978) 436 U.S.775], referred to
hereinbefore, where it has been held that "to deny a station licence
because the public interest requires it is riot a denial of free speech".
It is significant that this was so said with reference to First Amendment to
the United States Constitution which guarantees the freedom of speech and
expression in absolute terms. The mason is obvious. The right cannot rise above
the national interest and the interest of society which is but another name for
the interest of general public. It is true that Article 19(2) does not use the
words "national interest", "interest of society" or "public
interest" but as pointed hereinabove, the several grounds mentioned in
clause (2) are ultimately referable to the interests of the nation and of the
society. As observed by White,j., speaking for the United States Supreme Court,
in Red Lion:

"It
is the purpose of the First Amendment to preserve an uninhibited marketplace of
ideas in which truth will ultimately prevail, rather than to countenance
monopolization of that market, whether it be by the Government itself or a
private licensee. Associated Press v United States, 326 US 1, 20, 89 L Ed 2013,
2030, 65 S Ct 1416 (1945); New York Times Co. v Sullivan, 376 US 254, 270, 11 L
Ed 2d 686, 700, 84 S Ct 710, 95 ALR2d 1412 (1964); Abrams v United States, 250
US 616, 630, 63 L Ed 1173, 1180, 40 S Ct 17 (1919) (Holmes,J., dis- senting).
"[S]peech concerning public affairs is more Om self-expression; it is the essence of self-government." Garrison v
Louisiana, 379 US 64, 74-75, 13 L Ed 2d 125, 133, 85 S Ct 209 (1964). See Brennan, The
Supreme Court and the 220 Meiklejohn interpretation of the First Amendment, 79
Hary L Rev 1 (1965). It is the right of the public to receive suitable access
to social, political, esthetic, moral, and other ideas and experiences which is
crucial here." (Emphasis added) 195. We may have to bear this in mind
while delineating the parameters of this freedom. It would also be appropriate
to keep in mind the observations in Columbia Broadcasting System v. Democratic
National Committee (36 L.Ed.2d.772), Burger,C.J. quoted the words of Prof,
Chafee to the following effect:

"Once
we -get away from the bare words of the First Amendment, we must construe it as
part of a Constitution which creates a government for the purpose of performing
several very important tasks. The First Amendment should be interpreted so as not
to cripple the regular work of the government.

196.
We must also bear in mind that the obligation of the State to ensure this right
to all the citizens of the country (emphasised hereinbefore) creates an
obligation upon it to ensure that the broadcasting media is not monopolised,
dominated or hijacked by privileged, rich and powerful interests. Such
monopolisation or domination cannot but be prejudicial to the freedom of speech
and expression of the citizens in general - an aspect repeatedly stressed by
the Supreme Court of United States and the Constitutional Courts of Germany and
Italy.

197.
The importance and significance of television in the modern world needs no
emphasis. Most people obtain the bulk of their information on matters of
contemporary interest from the broadcasting medium.

The
television is unique in the way in which it intrudes into our homes. The
combination of picture and voice makes it an irresistibly attractive medium of
presentation. Call it idiot box or by any other pejorative name, it has a
tremendous appeal and influence over millions of people.

Many
of them are glued to it for hours on end each day.

Television
is shaping the food habits, cultural values, social mores and what not of the
society in a manner no other medium has done so far. Younger generation is
particularly addicted to it. It is a powerful instrument, which can be used for
greater good as also for doing immense harm to the society. It depends upon how
it is used. With the advance of technology, the number of channels available
has grown enormously. National borders have become meaningless. The reach of
some of the major networks is international they are not confined to one
country or one region. It is no longer possible for any government to control
or manipulate the news, views and information avail- able to its people. In a
manner of speaking, the technological revolution is forcing inter-nationalism
upon the world. No nation can remain a fortress or an island in itself any
longer. Without a doubt, this technological revolution is presenting new
issues, complex in nature - in the words of Burger,C.J., "complex problems
with many hard questions and few easy answers". Broadcasting media by its
very nature is different from Press. Airwaves are public property. The fact
that a large number of frequencies/channels are available does not make them
anytheless public property. It is the obligation of the State under our
constitutional system to ensure that they are used for public good.

198.
Now, what does this public good mean and signify in the context of the 221
broadcasting medium? In a democracy, people govern themselves and they cannot
govern themselves properly unless they are aware - aware of social, political,
economic and other issues confronting them. To enable them to make a proper
judgment on those issues, they must have the benefit of a range of opinions on
those issues. Right to receive and impart information is implicit in free
speech. This plurality of opinions, views and ideas is indispensable for enabling
them to make an informed judgment on those issues to know what is their true
interest, to make them responsible citizens, to safeguard their rights as also
the interests of society and State. All the constitutional courts of leading
democracies, reference to which has been made hereinbefore, have recognised and
reiterated this aspect. This is also the view of the European Court of Human
Rights. In Castells v. Spain (14 EHRR 445) - quoted in 1994 Public Law at 524 -
the court held that free political debate is "at the very core of the
concept of a democratic society".

199.
From the standpoint of Article 19(1)(a), what is paramount is the right of the
listeners and viewers and not the right of the broadcaster - whether the
broadcaster is the State, public corporation or a private individual or body. A
monopoly over broadcasting, whether by government or by anybody else, Is
inconsistent with the free speech right of the citizens. State control really
means governmental control, which in turn means, control of the political party
or parties in power for the time being.

Such
control is bound to colour the views, information and opinions conveyed by the
media. The free speech right of the citizens is better served in keeping the
broadcasting media under the control of public. Control by public means control
by an independent public corporation or corporations, as the case may be,
formed under a statute.

As
held by the Constitutional Court of Italy, broadcasting provides an essential
service in a democratic society and could legitimately be reserved for a public
institution, provided certain conditions are met. The corporation(s) must be
constituted and composed in such a manner as to ensure its independence from
government and its impartiality on public issues. When presenting or discussing
a public issue, it must be ensured that all aspects of it are presented in a
balanced manner, without appearing to espouse any one point of view. This will
also enhance the credibility of the media to a very large extent; a controlled
media cannot command that level of credibility.

For
the purpose of ensuring the free speech rights of the citizens guaranteed by
Article 19(1)(a), it is not necessary to have private broadcasting stations, as
held by the Constitutional Courts of France and Italy. Allowing private broadcasting would be to open the door
for powerful economic, commercial and political interests, which may not prove
beneficial to free speech right of the citizens - and certainly so, if strict
programme controls and other controls are not prescribed. The analogy with
press is wholly inapt. Above all, airwaves constitute public property. While,
the freedom guaranteed by Article 19(1)(a) does include the right to receive
and impart information, no one can claim the fundamental right to do so by
using or employing public property. Only where the statute permits him to use
the public property, then only - and subject to such conditions and
restrictions as the law may impose - he can use the public property, viz.,
airwaves. In other words, Article 19(1)(a) does not 222 enable a citizen to
impart his information, views and opinions by using the airwaves. He can do so
without using the airwaves. It need not be emphasised that while broadcasting
cannot be effected without using airwaves, receiving the broadcast does not
involve any such use.

Airwaves,
being public property must be utilised to advance public good. Public good lies
in ensuring plurality of opinions, views and ideas and that would scarcely be
served by private broadcasters, who would be and who are bound to be actuated
by profit motive. There is a far greater likelihood of these private
broadcasters indulging in mis- information, disinformation and manipulation of
news and views than the government-controlled media, which is at least subject
to public and parliamentary scrutiny. The experience in Italy, where the Constitutional Court allowed private broadcasting at the
local level while denying it at the national level should serve as a lesson;
this limited opening has given rise to giant media oligopolies as mentioned
supra. Even with the best of programme controls it may prove counter-productive
at the present juncture of our development; the implementation machinery in our
country leaves much to be desired which is shown by the ineffectiveness of the
several enactments made with the best of the intentions and with most laudable
provisions; this is a reality which cannot be ignored. It is true that even if
private broadcasting is not allowed from Indian soil, such stations may spring
up on the periphery of or outside our territory, catering exclusively to the
Indian public.

Indeed,
some like stations have already come into existence.

The
space, it is said, is saturated with communication satellites and that they are
providing and are able to pro vide any number of channels and frequencies. More
technological developments must be in the offing. But that cannot be a ground
for enlarging the scope of Article 19(1 (a). It may be a factor in favour of
allowing private broadcasting - or it may not be. It may also be that the
Parliament decides to increase the number of channels under the Doordarshan,
diversifying them into various fields, commercial, educational, sports and so
on. Or the Parlia- ment may decide to permit private broadcasting, but if it
does so permit, it should not only keep in mind the experience of the countries
where such a course has been permitted but also the conditions in this country
and the compulsions of technological developments and the realities of
situation resulting from technological developments. We have no doubt in our
mind that it will so bear in mind the above factors and all other relevant
circumstances. We make it clear, we are not concerned with matters of policy
but with the content of Article 19(1)(a) and we say that while public
broadcasting is implicit in it, private broadcasting is not. Matters of policy
are for the Parliament to consider and not for courts. On account of historical
fac- tors, radio and television have remained in the hands of the State
exclusively. Both the networks have been built up over the years 'With public
funds. They represent the wealth and property of the nation. It may even be
said that they represent the material resources of the community within the meaning
of Article 39(b). They may also be said to be 'facilities' within the meaning
of Article 38, They must be employed consistent with the above articles and
consistent with the constitutional policy as adumbrated in the preamble to the
Constitution and Parts III and IV. We must reiterate that the Press whose
freedom is implicit in Article 19(1)(a) stands 223 on a different footing. The
petitioners - or the potential applicants for private broadcasting licenses -
cannot invoke the analogy of the press. To repeat, airwaves are public property
and better remain in public hands in the interest of the very freedom of speech
and expression of the citizens of this country.

200.
It would be appropriate at this stage to deal with the reasoning of the
European Court of Human Rights in the case of Information sverein Lentia. The
first thing to be noticed in this behalf is the language of Article 10(1) of
the European convention, set out hereinbefore. Clause (1) of Article 10 not
only says that everyone has the right to freedom of expression but also says
that the said right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and
regardless of frontiers. The clause then adds that Article 10 shall not,
however, prevent the State from requiring the licensing of broadcasting,
television or cinema enterprises. Clause (2) of course is almost in para
materia with clause (2) of Article 19 of our Constitution.

What
is, however, significant is that Article 10(1) expressly conferred the right
"to receive and impart information and ideas without interference by
public authority". The only power given to public authority, which in the
context means the State/Government, is to provide the requirement of license
and nothing more. It is this feature of clause (1) which has evidently
influenced the decision of the European court. The decision cannot, therefore,
be read as laying down that the right of free expression by itself implies and
includes the right to establish private broadcasting stations. It is necessary
to emphasise another aspect. While I agree with the statement in Para 38 to the
effect that freedom of expression is fundamental to a democratic society and
that the said right "cannot be successfully accomplished unless it is
grounded in the principle of pluralism, of which the State is the ultimate
guarantor", I find it difficult to agree that such pluralism cannot be
ensured by a public/statutory corporation of the nature already in existence in
Austria and that it is necessary to provide for private broadcasting to ensure
pluralism, as held in Para 39. The fact that as a result of technological
advances, the argument of limited number of frequencies is no longer available,
cannot be a ground for reading the right to private broadcasting into freedom
of expression. The decision as such is coloured by the particular language of
clause (1) of Article 10, as stated above. I must also say that the last
observation in Para 39 viz., that there can be other less restrictive solutions
is also not a ground which we can give effect to under the legal system
governing us. The question in such cases always is whether the particular
restriction placed is reasonable and valid and not whether other less
restrictive provisions are possible. I may also mention that the arguments
which weighed with other constitutional courts, viz., that airwaves represent
public property and that they cannot be allowed to be dominated or monopolised
by powerful commercial, economic and political interests does not appear to
have been argued or considered by the European Court. As has been emphasised by
other constitutional courts, the very free speech interest of the citizens
requires that the broadcasting media is not dominated or controlled by such
powerful interests.

201.
There is yet another aspect of the 224 petitioners' claim which requires to be
explained.

According
to their own case, they have sold the telecasting rights with respect to their
matches to a foreign agency with the understanding that such foreign agency
shall bring in its own equipment and personnel and telecast the matches from
the Indian territory. Once they have sold their rights,
the foreign agency is not their agent but an independent party. It is a
principal by itself The foreign agency cannot claim or enforce the right
guaranteed by Article 19(1)(a). Petitioners cannot also claim because they have
already sold the rights. In other words, the right to telecast is no longer
with them but with the foreign firm which has purchased the telecasting rights.

For
this reason too, the petitioners' claim must be held to be unacceptable.

202.
Having held that Article 19(1)(a) does not encompass the right to establish,
maintain or run broadcasting stations or broadcasting facilities, we feel it
necessary to clarify the true purport of the said freedom in the context of
broadcasting media. This is necessary to ensure that I am not misunderstood or
misinterpreted. Indeed, what I propose to say hereafter flows logically from what
I have said heretofore.

203.
It has been held by this Court in Life Insurance Corporation v. Manubhai Shah
that the freedom of speech and expression guaranteed to the citizens of this
country "Includes the right to propagate one's views through print media
or through any other communication channel, e.g., the radio and the television.
Every citizen of this free country, therefore, has the right to air his or her
views through the printing course to permissible restrictions imposed under
Article 19(2) of the Constitution". It has also been held in the said
decision that "the print media, the radio and the tiny screen play the
role of public educa- tors, so vital to the growth of a healthy democracy.

Freedom
to air one's views is the lifeline of any democratic institution and any
attempt to stifle, suffocate or gag this right would sound a death-knell to
democracy and would help usher in autocracy or dictatorship..... It follows
that a citizen for propagation of his or her ideas has a right to publish for
circulation his views in periodicals, magazines and journals or through the
electronic media since it is well known that these communication channels are
great purveyors of news and views and make considerable impact on the minds of
the readers and viewers and are known to mould public opinion on vital issues
of national importance." To the same effect is the holding in Odyssey
Communications referred to supra. Once this is so, it follows that no monopoly
of this media can be conceived for -the simple reason that Article 19(2) does
not permit State monopoly unlike clause (6) of Article 19 vis-a-vis the right
guaranteed by Article 19(1)(g).

204.
All the Constitutional Courts whose opinions have been referred to hereinbefore
have taken the uniform view that in the interest of ensuring plurality of
opinions, views, ideas and ideologies, the broadcasting media cannot be allowed
to be under the monopoly of any one - be it the monopoly of Government or or an
individual, body or Organisation.

Government
control in effect means the control of the po- litical party or parties in
power for the time being. Such control is bound to colour and/or the electronic
media subject of and in some cases, may even distort the 225 news, views and
opinions expressed through the media. It is not conducive to free expression of
contending viewpoints and opinions which is essential for the growth of a
healthy democracy. I have said enough hereinbefore in support of the above
propositions and we do not think it necessary to repeat the same over again
here. I have also mentioned hereinbefore that for ensuring plurality of views,
opinions and also to ensure a fair and balanced presentation of news and public
issues, the broadcast media should be placed under the control of public, i.e.,
in the hands of statutory corporation or corporations, as the case may be. This
is the implicit command of Article 19(1)(a). I have also stressed the
importance of constituting and composing these corporations in such a manner
that they ensure impartiality in political, economic and social and other
matters touching the public and to ensure plurality of views, opinions and
ideas. This again is the implicit command of Article 19(1)(a). This medium
should promote the public interest by providing information, knowledge and
entertainment of good quality in a balanced way. Radio and Television should
serve the role of public educators as well. Indeed, more than one corporation
for each media can be provided with a view to provide competition among them
(as has been done in France) or for convenience, as the case
may be.

205.
Now, coming to the Indian Telegraph Act, 1885, a look at its scheme and
provisions would disclose that it was meant for a different purpose altogether.
When it was enacted, there was neither Radio***** nor, of course, television,
though it may be that radio or television fall within the definition of
"telegraph" in Section 3(1).

Except
Section 4 and the definition of the expression "telegraph", no other
provision of the Act appears to be relevant to broadcasting media. Since the
validity of Section 4(1) has not been specifically challenged before us, we
decline to express any opinion thereon. The situation is undoubtedly
unsatisfactory. This is the result of the legislation in this country not
keeping pace with the technological developments. While all the democracies in
the world have enacted laws specifically governing the broadcasting media, this
country has lagged behind, rooted in the Telegraph Act of 1885 which is wholly
inadequate and unsuited to an important medium like radio and television, i.e.,
broadcasting media. It is absolutely essential, in the interests of public, in
the interests of the freedom of speech and expression guaranteed by Article
19(1)(a) and with a view to avoid confusion, uncertainty and consequent
litigation that Parliament steps in soon to fill the void by enacting a law or
laws, as the case may be, governing the broadcasting media, i.e., both radio
and television media.

The
question whether to permit private broadcasting or not is a matter of policy
for the Parliament to decide. If it decides to permit it, it is for the
Parliament to decide, subject to what conditions and restrictions should it be
permitted. (This aspect has been dealt with supra.) The fact remains that
private broadcasting, even if allowed, should not be left to market forces, in
the interest of ensuring that a wide variety of voices enjoy access to it.

SUMMARY
206. In this summary too, the expres- ***** It was only in 1895 that G.Marconi
suc- ceeded in transmitting wireless signals be- tween sending and receiving
points without the use of connecting wires over a distance of tw o kilometers.

226 sion
"broadcasting media" means the electronic media now represented and
operated by AIR and Doordarshan and not any other services.

I
(a).Game of cricket, like any other sports event,provides entertainment.
Providing entertainment is implied in freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution subject to this rider that where
speech and conduct are joined in a single course of action, the free speech
values must be balanced against competing societal interests, The petitioners
(CAB and BCCI) therefore have a right to organise cricket matches in India,
whether with or without the participation of foreign teams.

But
what they are now seeking is a license to telecast their matches through an
agency of their choice - a foreign agency in both the cases - and through
telecasting equipment brought in by such foreign agency from outside the
country.

In the
case of Hero Cup Matches organised by CAB, they wanted uplinking facility to
INTELSAT through the government agency VSNL also. In the case of later
international matches organised by BCCI they did not ask for this facility for the
reason that their foreign agent has arranged direct uplinking with the Russian
satellite Gorizon. In both cases, they wanted the permission to import the
telecasting equipment along with the personnel to operate it by moving it to
places all over the country wherever the matches were to be played. They
claimed this license, or permission, as it may be called, as a matter of right
said to be flowing from Article 19(1)(a) of the Constitution. They say that the
authorities are bound to grant such license/ permission, without any
conditions, all that they are entitled to do, it is submitted, is to collect
technical fees wherever their services are availed, like the services of VSNL
in the case of Hero Cup Matches. This plea is in principle no different from the
right to establish and operate private telecasting stations. In principle,
there is no difference between a permanent TV station and a temporary one;
similarly there is no distinction in principle between a stationary TV facility
and a mobile one; so also is there no distinction between a regular TV facility
and a TV facility for a given event or series of events. If the right claimed
by the petitioners (CAB and BCCI) is held to be constitutionally sanctioned
one, then each and every citizen of this country must also be entitled to claim
similar right in respect of his event or events, as the case may be. I am of
the opinion that no such right flows from Article 19(1)(a).

(b)Airwaves
constitute public property and must be utilised for advancing public good. No
individual has a right to utilise them at his choice and pleasure and for
purposes of his choice including profit. The right of free speech guaranteed by
Article 19(1)(a) does not include the right to use airwaves, which are public
property. The airwaves can be used by a citizen for the purpose of broadcasting
only when allowed to do so by a statute and in accordance with such statute.
Airwaves being public property, it is the duty of the State to see that
airwaves are so utilised as to advance the free speech right of the citizens
which is served by ensuring plurality and diversity of views, opinions and
ideas. This is imperative in every democracy where freedom of speech is
assured. The free speech right guaranteed to every citizen of this country does
not encompass the right to use these airwaves at his choosing.

Conceding
such a right would be 227 detrimental to the free speech rights of the body of
citizens inasmuch as only the privileged few - powerful economic, commercial
and political interests - would come to dominate the media. By manipulating the
news, views and information, by indulging in misinformation and disinformation,
to suit their commercial or other interests, they would be harming and not
serving - the principle of plurality and diversity of views, news, ideas and
opinions.

This
has been the experience of Italy where a limited right, i.e., at the local
level but not at the national level was recognised. It is also not possible to
imply or infer a right from the guarantee of free speech which only a few can
enjoy.

(c)Broadcasting
media is inherently different from Press or other means of
communication/information. The analogy of press is misleading and
inappropriate. This is also the view expressed by several Constitutional Courts
including that of the United
States of America.

(d) I
must clarify what I say; it is that the right claimed by the petitioners (CAB
and BCCI) - which in effect is no different in principle from a right to
establish and operate a private TV station - does not flow from Article 19(1)(a);

that
such a right is not Implicit in it. The question whether such right should be
given to the citizens of this country is a matter of policy for the Parliament.
Having regard to the revolution in information technology and the developments
all around, Parliament may, or may not, decide to confer such right. If it
wishes to confer such a right, it can only be by way of an Act made by
Parliament. The Act made should be consistent with the right of free speech of
the citizens and must have to contain strict programme and other controls as
has been provided for example, in the Broadcasting Act, 1991 in the United Kingdom. This is the implicit command of
Article 19(1)(a) and is essential to preserve and promote plurality and diversity
of views, news, opinions and ideas.

(e)
There is an inseparable inter-connection between freedom of speech and the
stability of the society, i.e., stability of a nation-State. They contribute to
each other.

Ours
is a nascent republic. We are yet to achieve the goal of a stable society. This
country cannot also afford to read into Article 19(1)(a) an unrestricted right
to licensing (right of broadcasting) as claimed by the petitioners herein.

(f) In
the case before us, both the petitioners have sold their right to telecast the
matches to a foreign agency.

They
have parted with the right. The right to telecast the matches, including the
right to import, install and operate the requisite equipment is thus really
sought by the foreign agencies and not by the petitioners. Hence, the question
of violation of their right under Article 19(1)(a) resulting from refusal of
license/permission to such foreign agencies does not arise.

2. The
Government monopoly of broadcasting media in this country is the result of
historical and other factors. This is true of every other country, to start
with. That India was not a free country till 1947
and its citizens did not have constitutionally guaranteed fundamental freedoms
till 1950 coupled with the fact that our Constitution is Just about forty five
years into operation explains the Government monopoly. As pointed out in the
body of the judgment, broadcasting media was a mo- 228 nopoly of the
Government, to start with, in every country except the United States where a conscious decision was
taken at the very beginning not to have State monopoly over the medium. Until
recently, the broadcasting media has been in the hands of public/statutory
corporations in most of the West European countries. Private broadcasting is comparatively
a recent phenomenon. The experience in Italy of allowing private broadcasting at local level (while prohibiting it
at national level) has left much to be desired. It has given rise to powerful
media empires which development is certainly not conducive to free speech right
of the citizens.

3 (a).
It has been held by this Court - and rightly - that broadcasting media is
affected by the free speech right of the citizens guaranteed by Article 19(1)(a).
This is also the view expressed by all the Constitutional Courts whose opinions
have been referred to in the body of the judgment.

Once
this is so, monopoly of this medium (broadcasting media), whether by Government
or by an individual, body or Organisation is unacceptable. Clause (2) of
Article 19 does not permit a monopoly in the matter of freedom of speech and
expression as is permitted by clause (6) of Article 19 vis-a-vis the right
guaranteed by Article 19(1)(g).

(b)
The right of free speech and expression includes the right to receive and
impart information. For ensuring the free speech right of the citizens of this
country, it is necessary that the citizens have the benefit of plurality of
views and a range of opinions on all public issues. A successful democracy
posits an 'aware' citizenry. Diversity of opinions, views, ideas and ideologies
is essential to enable the citizens to arrive at informed judgment on all
issues touching them. This cannot be provided by a medium controlled by a
monopoly - whether the monopoly is of the State or any other individual, group
or Organisation. As a matter of fact, private broadcasting stations may perhaps
be more prejudicial to free speech right of the citizens than the government
controlled media, as explained in the body of the judgment. The broadcasting media
should be under the control of the public as distinct from Government. This is
the command implicit in Article 19(1)(a). It should be operated by a public
statutory corporation or corporations, as the case may be, whose constitution
and composition must be such as to ensure its/their impartiality in political,
economic and social matters and on all other public issues.

It/they
must be required by law to present news, views and opinions in a balanced way
ensuring pluralism and diversity of opinions and views. It/they must provide
equal access to all the citizens and groups to avail of the medium.

4. The
Indian Telegraph Act, 1885 is totally inadequate to govern an important medium
like the radio and television, i.e., broadcasting media. The Act was intended
for an altogether different purpose when it was enacted. This is the result of
the law in this country not keeping pace with the technological advances in the
field of information and communications. While all the leading democratic
countries have enacted laws specifically governing the broadcasting media, the
law in this country has stood still, rooted in the Telegraph Act of 1885.
Except Section 4(1) and the definition of telegraph, no other provision of the
Act is shown to have any relevance to broadcasting media. It is, therefore, 229
imperative that the parliament makes a law placing the broadcasting media in
the hands of a public/statutory corporate or the corporations, as the case.may
be. This is necessary to safeguard the interests of public and the interests of
law as also to avoid uncertainty, confusion and consequent litigation.

5. The
CAB did not ever apply for a license under the first proviso to Section 4 of
the Telegraph Act nor did its agents ever make such an application. The
permissions, clearances or exemption obtained by it from the several
departments (mentioned in judgment) are no substitute for a license under
Section 4(1) proviso. In the absence of such a license, the CAB had no right in
law to have its matches telecast by an agency of its choice. The legality or
validity of the orders passed by Sri N.Vithal, Secretary to the Government of
India, Telecommunications Department need not be gone into since it has become,
academic. In the facts and circumstances of the case, the charge of malafides
or of arbitrary and authoritarian conduct attributed to Doordarshan and
Ministry of Information and Broadcasting is not acceptable. No opinion need be
expressed on the allegations filed by BCCI in these matters. Its intervention
was confined to legal questions only.

6. Now
the question arises, what is the position till the Central Government or the
Parliament takes steps as contem- plated in Para (4) of the summary, i.e., if
any sporting event or other event is to be telecast from the Indian soil? The
obvious answer flowing from the judgment [and Paras (1) and (4) of this summary
is that the organiser of such event has to approach the, nodal Ministry as
specified in the de- cision of the Meeting of the Committee of Secretaries held
on November 12, 1993. I have no reason to doubt that such a request would be
considered by the nodal Ministry and the AIR and Doordarshan on its merits,
keeping in view the public interest. In case of any difference of opinion or
dispute regarding the monetary terms on which such telecast is to be made,
matter can always be referred to an Arbitrator or a panel of Arbitrators. In
case, the nodal Ministry or the AIR or Doordarshan find such broadcast/telecast
not feasible, then they may consider the grant of permission to the organisers
to engage an agency of their own for the purpose. Of course, it would be
equally open to the nodal Ministry (Government of India) to permit such foreign
agency in addition to AIR/ Doordarshan, if they are of the opinion that such a
course is called for in the circumstances.

207.
For the above reasons, the appeals, writ petition and applications are disposed
of in the above terms. No costs.